[Federal Register Volume 71, Number 186 (Tuesday, September 26, 2006)]
[Notices]
[Pages 56258-56299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7986]



[[Page 56257]]

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Part III





Department of Defense





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Department of the Army, Corps of Engineers



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 Proposal To Reissue and Modify Nationwide Permits; Notice

Federal Register / Vol. 71, No. 186 / Tuesday, September 26, 2006 / 
Notices

[[Page 56258]]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

[ZRIN 0710-ZA02]


Proposal To Reissue and Modify Nationwide Permits

AGENCY: Army Corps of Engineers, DoD.

ACTION: Notice.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is soliciting 
comments for the reissuance of the existing nationwide permits (NWPs), 
general conditions, and definitions, with some modifications. The Corps 
is also proposing to issue six new NWPs and one new general condition. 
The reissuance process starts with today's publication of the proposed 
NWPs in the Federal Register for a 60-day comment period. The purpose 
of this Federal Register notice is to solicit comments on the proposed 
new and modified NWPs, as well as the NWP general conditions and 
definitions. Shortly after the publication of this Federal Register 
notice, each Corps district will publish a public notice to solicit 
comments on their proposed regional conditions for the new and modified 
NWPs. The comment period for these district public notices will be 45 
days.

DATES: Submit comments on or before November 27, 2006.

ADDRESSES: You may submit comments, identified by docket number COE-
2006-0005 and/or ZRIN 0710-ZA02, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: <a href="/cdn-cgi/l/email-protection#3d595c4b5459135f1352514e52537d484e5c5e58135c4f504413505451"><span class="__cf_email__" data-cfemail="9df9fcebf4f9b3ffb3f2f1eef2f3dde8eefcfef8b3fceff0e4b3f0f4f1">[email protected]</span></a>. Include the docket number, 
COE-2006-0005, and/or the ZRIN number, 0710-ZA02, in the subject line 
of the message.
    Fax: 202-761-0140.
    Mail: U.S. Army Corps of Engineers, Attn: CECW-OR/MVD (David B. 
Olson), 441 G Street NW., Washington, DC 20314-1000.
    Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2006-0005 
and/or ZRIN 0710-ZA02. All comments received will be included in the 
public docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the commenter indicates that the comment includes 
information claimed to be Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. Do not 
submit information that you consider to be CBI, or otherwise protected, 
through regulations.gov or e-mail. The regulations.gov Web site is an 
anonymous access system, which means we will not know your identity or 
contact information unless you provide it in the body of your comment. 
If you send an e-mail directly to the Corps without going through 
regulations.gov, your e-mail address will be automatically captured and 
included as part of the comment that is placed in the public docket and 
made available on the Internet. If you submit an electronic comment, we 
recommend that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If we 
cannot read your comment because of technical difficulties and cannot 
contact you for clarification, we may not be able to consider your 
comment. Electronic comments should avoid the use of any special 
characters, any form of encryption, and be free of any defects or 
viruses.
    Docket: For access to the docket to read background documents or 
comments received, go to regulations.gov. All documents in the docket 
are listed. Although listed in the index, some information is not 
publicly available, such as CBI or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form.
    Consideration will be given to all comments received within 60 days 
of the date of publication of this notice.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by 
e-mail at <a href="/cdn-cgi/l/email-protection#e68287908f82c884c8898a958988a69395878583c887948b9fc88b8f8a"><span class="__cf_email__" data-cfemail="563237203f32783478393a2539381623253735337837243b2f783b3f3a">[email protected]</span></a> or access the U.S. Army Corps of 
Engineers Regulatory Home Page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

    The current nationwide permits (NWPs), which were published in the 
January 15, 2002, issue of the Federal Register (67 FR 2020) expire on 
March 18, 2007. With this Federal Register notice, we are beginning the 
process for reissuing the NWPs so that the reissued NWPs will be in 
effect as the current NWPs expire.
    Section 404(e) of the Clean Water Act provides the statutory 
authority for the Secretary of the Army, after notice and opportunity 
for public hearing, to issue general permits on a nationwide basis for 
any category of activities involving discharges of dredged or fill 
material into waters of the United States. Activities authorized by 
NWPs must be similar in nature, cause only minimal adverse 
environmental effects when performed separately, and cause only minimal 
cumulative adverse effect on the aquatic environment. Nationwide 
permits can also be issued to authorize activities pursuant to Section 
10 of the Rivers and Harbors Act of 1899. The NWP program is designed 
to provide timely authorizations for the regulated public while 
protecting the Nation's aquatic resources.
    One goal of today's notice is to simplify the text of the reissued 
NWPs. Since NWPs were first issued in 1977, the NWP program has become 
increasingly complex. With each issuance or reissuance of NWPs, the 
text of the permits and the general conditions has become lengthier, 
and in some cases, redundant language was added that may make them more 
difficult to comprehend. Compliance with the NWPs and their general 
conditions is more difficult if users of those permits cannot easily 
understand the requirements of the NWPs and what they authorize. 
Simplifying the text will facilitate compliance with the NWPs and thus 
help protect the aquatic environment.
    Federal agencies are required by Executive Order 12866, Regulatory 
Planning and Review, to draft regulations that are simple and easy to 
understand, to minimize uncertainty. This principle is also applicable 
to the NWPs, which are now considered to be rules under the 
Administrative Procedures Act (APA). In addition, a Presidential 
Memorandum issued on June 1, 1998, requires Federal agencies to use 
plain language in government writing, so that rules and other documents 
are clear to the public and others.
    We are proposing to revise the text of the NWPs, general 
conditions, and definitions so that they are clearer, more concise, and 
can be more easily understood by the regulated public, government 
personnel, and interested parties, while retaining terms and conditions 
that protect the aquatic environment. Making the text of the NWPs 
clearer and easier to understand will also facilitate compliance with 
these permits, which will benefit the aquatic environment. This 
proposal also reflects the Corps support of the administration's goal 
of improving regulatory efficiency, by making the

[[Page 56259]]

NWPs easier to read and understand. The text of the proposed NWPs has 
been streamlined by removing redundant language and applying a standard 
format to most NWPs. We are proposing to arrange the NWP general 
conditions in a different order, so that the conditions that provide 
environmental protection are first, followed by administrative and 
procedural general conditions.
    Today's proposal to reissue the existing NWPs with some 
modifications and to issue six new NWPs reflects the Corps commitment 
to its environmental protection mission and to aquatic resource 
protection. The NWP program allows the Corps to authorize activities 
with minimal adverse environmental impacts in a timely manner and 
protect the aquatic environment. The NWP program also allows the Corps 
to focus its limited resources on more extensive evaluation of projects 
that have the potential for causing environmentally damaging adverse 
effects.
    Through the NWPs, impacts to the aquatic environment may also 
receive additional protection through regional conditions, case-
specific special conditions, and case-specific discretionary authority 
to require individual permits. Nationwide permits and other general 
permits help protect the aquatic environment because permit applicants 
often reduce project impacts to meet the restrictive requirements of 
general permits and receive authorization more quickly than they would 
through the individual permit process.
    Twenty-six of the NWPs proposed for reissuance require pre-
construction notification (PCN) for certain activities. Fifteen of 
those NWPs require PCNs for all activities. Four of the six proposed 
new NWPs require PCNs. Three of those four new NWPs require PCNs for 
all activities. Altogether, PCN requirements have been added or 
expanded for seven permits, relative to the requirements in the current 
permits. Existing PCN requirements have been dropped in one permit (NWP 
5), and reduced in another (NWP 12), because the conditions for 
authorization under these permits are adequate to ensure minimal 
individual and cumulative effects without the previously required PCNs. 
PCN requirements give the Corps the opportunity to evaluate certain 
proposed NWP activities on a case-by-case basis to ensure that they 
will have no more than minimal adverse effects on the aquatic 
environment, individually and cumulatively. This case-by-case review 
often results in adding case-specific conditions to the NWP 
authorization to ensure that impacts to the aquatic environment are 
minimal. Review of PCNs may also result in the Corps asserting 
discretionary authority to require an individual permit if the district 
engineer determines, based on the information provided in the 
notification, that adverse impacts will be more than minimal, either 
individually or cumulatively, or there are sufficient concerns for any 
of the Corps public interest review factors.
    Regional conditions may be imposed by division engineers to take 
into account regional differences in aquatic resource functions and 
services across the country and to restrict the use of NWPs to protect 
those resources. Through regional conditions, a division engineer can 
modify an NWP to require submission of PCNs for certain activities. 
Regional conditions may also restrict or prohibit the use of an NWP in 
certain waters or geographic areas, if the use of that NWP in those 
waters or areas might result in more than minimal individual or 
cumulative adverse effects to the aquatic environment.
    District engineers may impose special conditions on NWP 
authorizations to ensure that the NWP authorizes only activities that 
result in minimal individual and cumulative effects on the aquatic 
environment and are in the public interest. In addition, special 
conditions will often include compensatory mitigation requirements to 
reduce the project impacts to the minimal level. Compensatory 
mitigation may include the restoration, establishment, enhancement, 
and/or preservation of aquatic habitats, as well as the establishment 
and maintenance of riparian areas next to streams and other open 
waters. Compensatory mitigation can be provided through permittee-
responsible mitigation, mitigation banks, or in-lieu fee programs.

Process for Reissuing the NWPs

    The NWPs reissued on January 15, 2002, became effective on March 
18, 2002, and expire on March 18, 2007. The reissuance process starts 
with today's publication of the proposed NWPs in the Federal Register 
for a 60-day comment period. Requests for a public hearing must be 
submitted in writing to the address in the ADDRESSES section of this 
notice. These requests must state the reason(s) for holding a public 
hearing. If we determine that a public hearing or hearings would assist 
in making a decision on the issuance of the proposed new NWPs, 
reissuance of existing NWPs, or the NWP general conditions or 
definitions, a 30-day advance notice will be published in the Federal 
Register to advise interested parties of the date(s) and location(s) 
for the public hearing(s). Any announcement of public hearings would 
also be posted as a supporting material in the docket at 
www.regulations.gov as well as the Corps regulatory home page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/citizen.htm
    Concurrent with this Federal Register notice, Corps district 
offices will issue public notices to solicit comments on proposed 
regional conditions. In their district public notices, district 
engineers may also propose to suspend or revoke some or all of these 
NWPs if they have issued, or are proposing to issue, regional general 
permits, programmatic general permits, or section 404 letters of 
permission for use in lieu of NWPs. The comment period for these 
district public notices will be 45 days.
    After the comment period has ended, we will review the comments 
received in response to this Federal Register notice. Then we will 
draft the final NWPs, and those final draft NWPs will be subjected to 
another review by interested Federal agencies. The final issued NWPs 
will be published in the Federal Register by January 2007. These final 
NWPs will become effective 60 days after their publication. This 
schedule provides a 60-day period for state and tribal Clean Water Act 
Section 401 water quality certifications (WQCs), as well as state 
Coastal Zone Management Act (CZMA) consistency decisions. Within this 
60-day period, division engineers will also approve regional conditions 
and issue supplemental decision documents. Supplemental decision 
documents address the environmental considerations related to the use 
of NWPs in a Corps district. The supplemental decision documents will 
certify that the NWPs, with any regional conditions or geographic 
revocations, will only authorize activities within that Corps district 
that result in minimal individual and cumulative adverse effects on the 
aquatic environment. The regional conditioning and WQC/CZMA processes 
are discussed below.

Compliance With Section 404(e) of the Clean Water Act

    The proposed NWPs are issued in accordance with Section 404(e) of 
the Clean Water Act. These NWPs authorize categories of activities that 
are similar in nature. The ``similar in nature'' requirement does not 
mean that activities authorized by an NWP must be identical to each 
other. We believe that the ``categories of activities that are similar 
in nature'' requirement of section 404(e) is to be interpreted broadly, 
for practical implementation of

[[Page 56260]]

this general permit program. Nationwide permits, as well as other 
general permits, are intended to reduce administrative burdens on the 
Corps and the regulated public, by efficiently authorizing activities 
that have minimal adverse environmental effects.
    As for the minimal adverse effects provision of section 404(e), the 
various terms and conditions of these NWPs, including the provisions in 
the NWP regulations at 33 CFR 330.1(d) and 33 CFR 330.4(d) that allow 
district engineers to exercise discretionary authority, ensure 
compliance with this requirement. A decision document will be prepared 
for each NWP to address the requirements of the National Environmental 
Policy Act and generally discuss the anticipated impacts the NWP will 
have on the Corps public interest review factors. For those NWPs that 
may authorize discharges of dredged or fill material into waters of the 
United States, a 404(b)(1) Guidelines analysis will be provided in the 
decision document. The 404(b)(1) Guidelines analysis will be conducted 
in accordance with the procedures at 40 CFR 230.7. The preliminary 
decision documents for the proposed NWPs are available on the internet 
at: www.regulations.gov (docket ID number COE-2006-0005). We are 
soliciting comments on these preliminary decision documents, and any 
comments received will be considered when preparing the final decision 
documents for the NWPs.

Decision of U.S. Court of Appeals for the District of Columbia Circuit

    In its July 29, 2005, decision in National Association of 
Homebuilders v. U.S. Army Corps of Engineers (Nos. 04-5009, 04-5010, 
and 04-5011), the U.S. Court of Appeals for the District of Columbia 
Circuit determined that NWPs are rules under the APA, and are subject 
to the Regulatory Flexibility Act (RFA). In the ``Administrative 
Requirements'' section of this preamble, we have addressed the 
requirements of the RFA. We have also performed other rulemaking 
analyses that are required by other statutes and executive orders. 
Those analyses are also provided in the ``Administrative Requirements'' 
section of this preamble.

National Environmental Policy Act Compliance

    We have prepared preliminary decision documents for each proposed 
NWP. Each decision document contains an environmental assessment (EA) 
and a Finding of No Significant Impact (FONSI). If the proposed NWP 
authorizes discharges of dredged or fill material into waters of the 
United States, the decision document will include a 404(b)(1) 
Guidelines analysis in accordance with 40 CFR 230.7. These decision 
documents will consider the environmental effects of each NWP from a 
national perspective. Division engineers will issue supplemental 
decision documents to evaluate regional effects on the aquatic 
environment and other public interest review factors. Those 
supplemental decision documents will discuss regional conditions 
imposed by division engineers to protect the aquatic environment and 
ensure that any adverse effects resulting from NWP activities will be 
no more than minimal.
    The assessment of cumulative effects occurs at two levels: national 
and regional (district). However, modifications at the district level 
are issued by the appropriate division engineer. There are eight Corps 
division offices in the United States, with 38 district offices. A 
division office may oversee as many as seven districts (Lakes and 
Rivers Division) or as few as two district offices (Pacific Ocean 
Division).
    At the national level, the decision documents issued by Corps 
Headquarters include the cumulative effects assessments required by 
NEPA and, if the NWP authorizes discharges of dredged or fill material 
into waters of the United States, the 404(b)(1) Guidelines. The 
404(b)(1) Guidelines at 40 CFR 230.7(b) require an evaluation of the 
potential individual and cumulative impacts of the category of 
activities authorized under the NWP.
    The supplemental decision documents issued by division engineers 
include cumulative effects assessments at the regional (district) 
level, for each district within the division. For those NWPs that 
authorize section 404 activities, the supplemental decision documents 
will also discuss local concerns relating to the Section 404(b)(1) 
Guidelines, if the national decision documents do not adequately 
address those issues. If the NWP is not revoked in a district, the 
supplemental decision document includes a certification that the use of 
the NWP in that district, with any applicable regional conditions 
(i.e., applicable in a specific district), will result in minimal 
cumulative adverse environmental effects. The supplemental decision 
documents are prepared by Corps districts, but must be approved and 
formally issued by the appropriate division engineer, since the NWP 
regulations at 33 CFR 330.5(c) state that the division engineer has the 
authority to modify, suspend, or revoke NWP authorizations for any 
specific geographic area within his division. Regional conditions are 
considered NWP modifications. Therefore, when the process is completed, 
each district will have approved supplemental decision documents for 
each NWP, and those supplemental decision documents will assess 
cumulative effects within that district.
    District engineers may also recommend that the division engineer 
exercise discretionary authority to modify, suspend, or revoke case-
specific NWP authorizations within a district to ensure that only 
minimal cumulative adverse effects on the aquatic environment result 
from activities authorized by that NWP. Evaluations by a district 
engineer may result in the division engineer modifying, suspending, or 
revoking NWP authorizations in a particular geographic region or 
watershed at a later time, if the use of an NWP in a particular area 
will result in more than minimal cumulative or individual adverse 
effects on the aquatic environment. Special conditions added to NWP 
authorizations on a case-by-case basis by district engineers, such as 
compensatory mitigation requirements, help ensure that the NWPs 
authorize only activities that result in minimal individual and 
cumulative adverse effects on the aquatic environment.

Acreage Limits and Pre-Construction Notification Thresholds

    We are proposing to retain the current acreage limits for the NWPs, 
although we are seeking comment on adding an acreage limit for NWP 21, 
which currently has no acreage limit. We are also proposing to move the 
provisions of NWP 39 that authorize residential developments to NWP 29 
and place a \1/2\ acre limit on the proposed NWP 29. Currently NWP 29 
has a \1/4\ acre limit for single unit residences, but this NWP can be 
used in all non-tidal waters, including non-tidal wetlands that are 
adjacent to tidal waters. Single unit residential projects are also 
permitted to use NWP 39, with a \1/2\ acre limit, if they affect only 
non-tidal waters, but NWP 39 cannot be used to authorize these 
activities in non-tidal wetlands adjacent to tidal waters. The revised 
NWP 29 will have a \1/2\ acre limit, but will only authorize discharges 
into non-tidal waters, and this NWP could not be used to authorize 
discharges in non-tidal wetlands that are adjacent to tidal waters. All 
residential projects impacting non-tidal wetlands adjacent to tidal 
waters, including single unit residences, will now require 
authorization by individual permit or

[[Page 56261]]

regional general permit. The Corps believes this additional level of 
environmental protection is warranted for non-tidal wetlands adjacent 
to tidal waters because of concerns regarding environmental impacts of 
residential development in coastal areas.
    Proposed NWP A, Emergency Repair Activities, has no explicit 
acreage limit but will be limited to restoring damaged structures, 
fills, or uplands to the pre-event ordinary high water mark, in cases 
where regulated activities in waters of the United States are necessary 
to conduct the restoration. Proposed NWP B, which would authorize 
discharges in certain types of ditches and canals, has a one acre 
limit, and proposed NWP C has no acreage limit for conducting time-
sensitive repairs of pipelines. Proposed NWP D, Commercial Shellfish 
Aquaculture Activities, is limited to existing aquaculture activities. 
The Corps is seeking comment on whether an acreage limit or some other 
type of limit (e.g., on the total volume of fill material that may be 
discharged) is needed to ensure that these existing activities have no 
more than minimal adverse effects. As proposed, this NWP will require a 
PCN if the activity covers more than 25 acres, or if more than 10 acres 
is covered with submerged aquatic vegetation. The proposed NWP 
authorizing coal remining activities (NWP E) is limited to sites where 
more than 60 percent of the site was previously mined. Proposed NWP F, 
which authorizes underground coal mining activities, has a \1/2\ acre 
limit. We are seeking comments on the proposed limits for these NWPs.
    We are proposing to simplify the PCN thresholds for NWP 12 by 
reducing the number of criteria triggering the requirement to submit 
PCNs from seven to two, since the \1/10\ acre PCN threshold will 
normally capture the activities addressed by the PCN thresholds we are 
proposing to remove. For NWP 13, PCNs will be required for proposed 
activities that involve discharges of dredged or fill material into 
special aquatic sites. We are also proposing to eliminate the PCN 
thresholds for NWPs 39, 40, 42, and 43. All activities authorized by 
these permits will now require PCNs.
    We are proposing to remove the PCN requirement for NWP 5, which 
authorizes scientific measuring devices, and rely on the current 25 
cubic yard limit for discharges of dredged or fill material to ensure 
that the NWP authorizes only activities with minimal individual and 
cumulative adverse effects on the aquatic environment. We are also 
proposing to drop some of the PCN requirements for special situations 
under NWP 12. Specifically, PCNs would no longer be required for: (1) 
Mechanized landclearing of forested wetlands in the utility line right-
of-way; (2) utility lines constructed in waters of the United States 
that are greater than 500 linear feet in length; (3) utility lines 
constructed in waters of the United States where the utility line is 
parallel to a stream; (4) permanent access roads constructed in waters 
of the United States for a distance of greater than 500 feet; and (5) 
permanent access roads constructed in waters of the United States with 
impervious materials, provided the total losses of waters of the United 
States are less than \1/10\ acre. For those NWP activities that do not 
require submission of PCNs to district engineers, division engineers 
can impose regional conditions to require PCNs. We are soliciting 
comments on the proposed PCN thresholds for the NWPs.

Ephemeral Streams

    On June 19, 2006, the Supreme Court issued its decision in the case 
of Rapanos et ux, et al, v. United States. This decision raises 
questions about the jurisdiction of the Clean Water Act, including 
Section 404, over some intermittent and ephemeral streams and their 
adjacent wetlands. The Corps will assess jurisdiction regarding such 
waters on a case-by-case basis in accordance with evolving case law and 
any future guidance that may be issued by appropriate Executive Branch 
agencies (e.g., the Department of Justice). The discussion that follows 
applies to all ephemeral and intermittent streams and adjacent wetlands 
that remain jurisdictional following Rapanos.
    We are proposing to provide greater protection for ephemeral 
streams. For those NWPs that have a 300 linear foot limit for the loss 
of stream bed, we are proposing to apply that linear foot limit to 
perennial, intermittent, and ephemeral streams. The 300 linear foot 
limit is found in the terms of NWPs 29, 39, 40, and 42. For proposed 
activities resulting in the loss of more than 300 linear feet of 
intermittent and/or ephemeral stream bed, the district engineer can 
waive the linear foot limit, if he determines that the proposed 
activity will result in minimal individual and cumulative adverse 
effects on the aquatic environment. Waivers of the 300 linear foot 
limit for the loss of intermittent and ephemeral streams must be in 
writing.
    In the 2002 NWPs, the 300 linear foot limit applied only to 
perennial and intermittent stream beds, and the 300 linear foot limit 
could be waived for losses of intermittent stream bed. A waiver could 
not be issued for impacts resulting in the loss of greater than 300 
linear feet of perennial streams (and we are not proposing to change 
this provision). For ephemeral streams, no waiver process was necessary 
because impacts to ephemeral streams were not counted towards the 300 
linear foot limit for determining compliance with the NWPs.
    Applying the linear foot limit to losses of ephemeral stream bed 
will also simplify administration of the NWP program. It is often 
difficult to distinguish between intermittent and ephemeral streams in 
the field. By applying the same thresholds and limits to impacts 
resulting in the loss of intermittent and ephemeral streams, it will 
not be necessary to identify which stream reaches are intermittent and 
which are ephemeral. Many topographic maps do not show the locations of 
intermittent and ephemeral streams, which results in greater reliance 
on site visits or information from permit applicants to implement 
permit conditions related to the 300 linear foot limit.
    For those NWPs that have both an acreage limit and a linear foot 
limit for stream bed impacts, the acreage of stream impacts (i.e., the 
length of the stream bed filled or excavated times the average width of 
the stream, from OHWM to OHWM) applies towards that acreage limit. For 
example, if a proposed NWP 39 activity involves filling \1/10\ acre of 
non-tidal wetlands and 100 linear feet of a stream bed with an average 
width of 10 feet, the acreage loss of waters of the United States for 
that activity is 0.123 acre.
    As discussed below, we are also proposing to modify the definition 
of ``loss of waters of the United States'' to include filling or 
excavating of ephemeral stream beds when determining whether proposed 
activities exceed the threshold limits of the NWPs.

Compliance With the Endangered Species Act

    In its April 6, 2005, decision in National Wildlife Federation et 
al. v. Les Brownlee (No. 03-1392), the U.S. District Court for the 
District of Columbia determined that the Corps is obligated to consult 
with the U.S. Fish and Wildlife Service on the effects of the NWPs. In 
response to that decision, the Corps will conduct Endangered Species 
Act Section 7(a)(2) consultation. Corps districts will consult with the 
U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries 
Service (NMFS) for the species that occur in their districts.

[[Page 56262]]

Essential Fish Habitat

    The NWP Program's compliance with the essential fish habitat (EFH) 
consultation requirements of the Magnuson-Stevens Fishery Conservation 
and Management Act will be achieved through EFH consultations between 
Corps districts and NMFS regional offices. Corps districts will request 
EFH consultations with the NMFS regional office in cases where 
activities authorized by NWP may adversely affect EFH. The purpose of 
these regional consultations is to determine if implementation of the 
proposed NWPs and regional conditions within a particular region may 
have an adverse effect on EFH. These consultations will be conducted 
according to the EFH consultation regulations at 50 CFR 600.920.

Regional Conditioning of Nationwide Permits

    Under Section 404(e), NWPs can only be issued that result in no 
more than minimal individual and cumulative adverse effects on the 
aquatic environment. An important mechanism for ensuring compliance 
with this requirement is an effective regional conditioning process. 
Coordination with Federal and State agencies and Indian Tribes, and the 
solicitation of public comments, assist division and district engineers 
in identifying and developing appropriate regional conditions for the 
NWPs. Effective regional conditions protect local aquatic ecosystems 
and helps ensure that the NWPs authorize only those activities that 
result in minimal individual and cumulative adverse effects on the 
aquatic environment, and are in the public interest.
    There are two types of regional conditions: (1) Corps regional 
conditions and (2) water quality certification/Coastal Zone Management 
Act consistency determination regional conditions.
    Corps regional conditions may be added to NWPs by division 
engineers after a public notice and comment process and coordination 
with other Federal, State, and local agencies.
    Examples of Corps regional conditions include:
    <bullet> Restricting the types of waters of the United States where 
the NWPs may be used (e.g., fens, bogs, bottomland hardwoods, etc.) or 
prohibiting the use of some or all of the NWPs in those types of waters 
or in specific watersheds.
    <bullet> Restricting or prohibiting the use of NWPs in an area 
covered by a Special Area Management Plan, or an Advanced 
Identification study with associated regional general permits.
    <bullet> Adding pre-construction notification (PCN) requirements to 
NWPs to require notification for all work in certain watersheds or 
certain types of waters of the United States, or lowering the PCN 
threshold.
    <bullet> Reducing NWP acreage limits in certain types of waters of 
the United States, or specific waterbodies;
    <bullet> Revoking certain NWPs on a geographic or watershed basis;
    <bullet> Restricting activities authorized by NWPs to certain times 
of the year in a particular waterbody, to minimize the adverse effects 
of those activities on fish or shellfish spawning, wildlife nesting, or 
other ecologically cyclical events.
    <bullet> Conditions necessary to ensure compliance with the 
Endangered Species Act and essential fish habitat provisions of the 
Magnuson-Stevens Fishery Conservation and Management Act.
    Corps regional conditions approved by division engineers cannot 
remove or weaken any of the terms and conditions of the NWPs, including 
general conditions and pre-construction notification requirements. In 
other words, Corps regional conditions can only be more restrictive 
than the original NWP terms and conditions.
    Regional conditions may also be added to the NWPs as a result of 
water quality certifications (WQCs) issued by states, Indian Tribes, or 
the U.S. EPA, as well as state Coastal Zone Management Act (CZMA) 
consistency determinations.
    At approximately the same time as the publication of this Federal 
Register notice, each Corps district will issue an initial public 
notice. Those initial public notices will include Corps regional 
conditions proposed by our district offices, and will also request 
comments or suggestions for additional Corps regional conditions. The 
initial public notice may also include, for informational purposes 
only, any proposed state or tribal WQC/CZMA regional conditions. 
However, public comment on the state or tribal WQC/CZMA regional 
conditions is handled through a separate state or tribal administrative 
procedures process. The public should not address such comments to the 
Corps.
    In response to the district's initial public notice, interested 
parties may suggest additional Corps regional conditions, or suggest 
suspension or revocation of NWPs in certain geographic areas, such as 
specific watersheds or waterbodies. Such comments should include data 
to support the need for any suggested modifications, suspensions, or 
revocations of NWPs.
    Before the effective date of NWPs, the division engineer will issue 
supplemental decision documents for each NWP. These supplemental 
decision documents will address the NWP regional conditions. Each 
supplemental decision document will also include a statement by the 
division engineer, which will certify that the NWP, with approved 
regional conditions, will authorize only activities with minimal 
individual and cumulative adverse effects on the aquatic environment.
    After the division engineer approves the Corps regional conditions, 
each Corps district will issue a final public notice for the NWPs. The 
final public notice will announce both the final Corps regional 
conditions and any final WQC/CZMA regional conditions. The final public 
notices will also announce the final status of water quality 
certifications and CZMA consistency determinations for the NWPs. Corps 
districts may adopt additional regional conditions in future public 
notices (following public notice and comment), if they identify a need 
for such conditions.
    Information on regional conditions and revocation can be obtained 
from the appropriate district engineer, as indicated below. 
Furthermore, this and additional information can be obtained on the 
Internet at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/district.htm by clicking on the appropriate link for the Corps district 
office.
    In cases where a Corps district has issued a regional general 
permit that authorizes similar activities as one or more NWPs, the 
district will clarify the use of the regional general permit versus the 
NWP(s) during the regional conditioning process. For example, the 
division engineer may revoke the applicable NWP(s) so that only the 
regional general permit may be used to authorize those activities.

Water Quality Certification/Coastal Zone Management Act Consistency 
Determination for Nationwide Permits

    State or Tribal water quality certification, or waiver thereof, is 
required by Section 401 of the Clean Water Act, for activities 
authorized by NWPs which result in a discharge into waters of the 
United States. In addition, any state with a federally-approved CZMA 
plan must agree with the Corps determination that activities authorized 
by NWPs which are within, or will affect any land or water uses or 
natural resources of the state's coastal zone, are

[[Page 56263]]

consistent with the CZMA plan to the maximum extent practicable. Water 
quality certifications and/or CZMA consistency determinations may be 
issued without conditions, issued with conditions, or denied for 
specific NWPs.
    We believe that, in general, the activities authorized by the NWPs 
will not violate State or Tribal water quality standards and will be 
consistent with state CZMA plans. The NWPs are conditioned to ensure 
that adverse environmental effects will be minimal and address the 
types of activities that would be routinely authorized if evaluated 
under the individual permit process. We recognize that in some states 
or Tribal lands there will be a need to add regional conditions, or 
individual state or Tribal review for some activities, to ensure 
compliance with water quality standards and/or consistency with CZMA 
plans. As a practical matter, we intend to work with states and Tribes 
to ensure that NWPs include the necessary conditions so that they can 
issue water quality certifications or CZMA consistency concurrences. 
Therefore, each Corps district will initiate discussions with their 
respective state(s) and Tribe(s), as appropriate, to discuss issues of 
concern and identify regional modification and other approaches to 
address the scope of waters, activities, discharges, and PCNs, as 
appropriate, to resolve these issues. Note that in some states the 
Corps has issued state programmatic general permits (SPGPs), and within 
those states some or all of the NWPs may be suspended or revoked by 
division engineers. Concurrent with today's proposal, district 
engineers may be proposing modification or revocation of the NWPs in 
states where SPGPs will be used in place of some or all of the NWPs.

Section 401 of the Clean Water Act

    This Federal Register notice serves as the Corps application to the 
Tribes, States, or EPA, where appropriate, for water quality 
certification of the activities authorized by these NWPs. The Tribes, 
States, and EPA, where appropriate, are requested to issue, deny, or 
waive water quality certification pursuant to 33 CFR 330.4(c) for these 
NWPs.
    If a state denies a water quality certification for an NWP within 
that state, then the Corps will deny NWP authorization for the affected 
activities within that state without prejudice. However, when 
applicants request approval of such activities, and the Corps 
determines that those activities meet the terms and conditions of the 
NWP, the Corps will issue provisional NWP verification letters. The 
provisional verification letter will contain general and regional 
conditions as well as any project specific conditions the Corps 
determines are necessary for NWP authorization. The Corps will notify 
the applicant that they must obtain a project specific water quality 
certification, or waiver thereof, before they are authorized to start 
work in waters of the United States. That is, NWP authorization will be 
contingent upon obtaining the necessary water quality certification or 
waiver thereof from the State, Tribe, or EPA where appropriate. Anyone 
wanting to perform such activities where pre-construction notification 
to the Corps is not required has an affirmative responsibility to first 
obtain a project-specific water quality certification or waiver thereof 
from the Tribe, State, or EPA before proceeding under the NWP. This 
requirement is provided at 33 CFR 330.4(c).

Section 307 of the Coastal Zone Management Act (CZMA)

    This Federal Register notice serves as the Corps determination that 
the activities authorized by these NWPs are, to the maximum extent 
practicable, consistent with state CZMA programs. This determination is 
contingent upon the addition of state CZMA conditions and/or regional 
conditions, or the issuance by the state of an individual consistency 
concurrence, where necessary. States are requested to agree or disagree 
with the consistency determination following 33 CFR 330.4(d) for these 
NWPs.
    The Corps' CZMA consistency determination only applies to NWP 
authorizations for activities that are within, or affect, any land, 
water uses or natural resources of a State's coastal zone. NWP 
authorizations for activities that are not within or would not affect a 
State's coastal zone do not require a Corps CZMA consistency 
determination and thus are not contingent on a State's agreement with 
the Corps' consistency determinations.
    If a State disagrees with the Corps consistency determination for 
an NWP, then the Corps will deny authorization for the activities 
within or that would affect the coastal zone without prejudice. 
However, when applicants request approval of such activities, and the 
Corps determines that those activities meet the terms and conditions of 
the NWP, the Corps will issue provisional NWP verification letters. The 
provisional verification letter will contain general and regional 
conditions as well as any project specific conditions the Corps 
determines are necessary for NWP authorization. The Corps will notify 
the applicant that they must obtain a project specific CZMA consistency 
determination before they are authorized to start work in waters of the 
United States. That is, NWP authorization will be contingent upon 
obtaining the necessary CZMA consistency concurrence from the State. 
Anyone wanting to perform such activities where pre-construction 
notification to the Corps is not required has an affirmative 
responsibility to present a consistency certification to the 
appropriate State agency for concurrence. Upon concurrence with such 
consistency certifications by the state, the activity would be 
authorized by the NWP. This requirement is provided at 33 CFR 330.4(d).

Nationwide Permit Verifications

    Certain NWPs require the permittee to submit a PCN, and thus 
request confirmation from the district engineer that an activity 
complies with the terms and conditions of an NWP, prior to commencing 
the proposed work. The requirement to submit a PCN is identified in the 
NWP text. Pre-construction notification requirements may added to NWPs 
by division engineers through regional conditions. In cases where pre-
construction notification is not required, a project proponent may 
submit a PCN voluntarily, if he or she wants assurance that the 
activity is authorized by an NWP. An NWP verification is a response to 
a PCN that confirms that a particular activity is authorized by an NWP.
    In response to an NWP verification request (PCN), the district 
engineer reviews the information submitted by the prospective 
permittee. If the district engineer determines that the activity 
complies with the terms and conditions of the NWP, he will notify the 
permittee. Special conditions, such as compensatory mitigation 
requirements, may be added to the NWP authorization to ensure that the 
activity results in minimal individual and cumulative adverse effects 
on the aquatic environment and other public interest factors. The 
special conditions are incorporated into the NWP verification, along 
with the NWP text and the NWP general conditions.
    If the district engineer reviews the NWP verification request and 
determines that the proposed activity does not comply with the terms 
and conditions of an NWP, he will notify the project proponent and 
provide instructions for applying for authorization under a regional 
general permit or an individual permit. District engineers will respond 
to NWP

[[Page 56264]]

verification requests within 45 days of receiving a complete PCN. 
Except for NWP 21, if the project sponsor has not received a reply from 
the Corps within 45 days, she may assume that the project is 
authorized, consistent with the information in the PCN. For NWP 21 
(Surface Coal Mining), the project sponsor may not begin work before 
receiving an NWP verification.

Contact Information for Corps District Engineers

Alabama

    Mobile District Engineer, ATTN: CESAM-RD, 109 St. Joseph Street, 
Mobile, AL 36602-3630.

Alaska

    Alaska District Engineer, ATTN: CEPOA-CO-R, P.O. Box 6898, 
Elmendorf AFB, AK 99506-6898.

Arizona

    Los Angeles District Engineer, ATTN: CESPL-CO-R, P.O. Box 532711, 
Los Angeles, CA 90053-2325.

Arkansas

    Little Rock District Engineer, ATTN: CESWL-RO, P.O. Box 867, Little 
Rock, AR 72203-0867.

California

    Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, 
Sacramento, CA 95814-2922.

Colorado

    Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson 
Plaza NE, Albuquerque, NM 87109-3435.

Connecticut

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Delaware

    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East Philadelphia, PA 19107-3390.

Florida

    Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019.

Georgia

    Savannah District Engineer, ATTN: CESAS-OP-F, P.O. Box 889, 
Savannah, GA 31402-0889.

Hawaii

    Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440.

Idaho

    Walla Walla District Engineer, ATTN: CENWW-RD, 201 North Third 
Avenue, Walla Walla, WA 99362-1876.

Illinois

    Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, 
Rock Island, IL 61204-2004.

Indiana

    Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059.

Iowa

    Rock Island District Engineer, ATTN: CEMVR-OD-P, P.O. Box 2004, 
Rock Island, IL 61204-2004.

Kansas

    Kansas City District Engineer, ATTN: CENWK-OD-R, 700 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896.

Kentucky

    Louisville District Engineer, ATTN: CELRL-OP-F, P.O. Box 59, 
Louisville, KY 40201-0059.

Louisiana

    New Orleans District Engineer, ATTN: CEMVN-OD-S, P.O. Box 60267, 
New Orleans, LA 70160-0267.

Maine

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Maryland

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

Massachusetts

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Michigan

    Detroit District Engineer, ATTN: CELRE-RG, P.O. Box 1027, Detroit, 
MI 48231-1027.

Minnesota

    St. Paul District Engineer, ATTN: CEMVP-OP-R, 190 Fifth Street 
East, St. Paul, MN 55101-1638.

Mississippi

    Vicksburg District Engineer, ATTN: CEMVK-OD-F, 4155 Clay Street, 
Vicksburg, MS 39183-3435.

Missouri

    Kansas City District Engineer, ATTN: CENWK-OD-R, 700 Federal 
Building, 601 E. 12th Street, Kansas City, MO 64106-2896.

Montana

    Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street, 
Omaha, NE 68102-1618.

Nebraska

    Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street, 
Omaha, NE 68102-1618.

Nevada

    Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, 
Sacramento, CA 95814-2922.

New Hampshire

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

New Jersey

    Philadelphia District Engineer, ATTN: CENAP-OP-R, Wannamaker 
Building, 100 Penn Square East, Philadelphia, PA 19107-3390.

New Mexico

    Albuquerque District Engineer, ATTN: CESPA-OD-R, 4101 Jefferson 
Plaza NE, Albuquerque, NM 87109-3435.

New York

    New York District Engineer, ATTN: CENAN-OP-R, 26 Federal Plaza, New 
York, NY 10278-0090.

North Carolina

    Wilmington District Engineer, ATTN: CESAW-RG, P.O. Box 1890, 
Wilmington, NC 28402-1890.

North Dakota

    Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street, 
Omaha, NE 68102-1618.

Ohio

    Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070.

Oklahoma

    Tulsa District Engineer, ATTN: CESWT-RO, 1645 S. 101st East Ave, 
Tulsa, OK 74128-4609.

Oregon

    Portland District Engineer, ATTN: CENWP-OD-G, P.O. Box 2946, 
Portland, OR 97208-2946.

Pennsylvania

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

[[Page 56265]]

Rhode Island

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

South Carolina

    Charleston District Engineer, ATTN: CESAC-CO-P, P.O. Box 919, 
Charleston, SC 29402-0919.

South Dakota

    Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street, 
Omaha, NE 68102-1618.

Tennessee

    Nashville District Engineer, ATTN: CELRN-OP-F, 3701 Bell Road, 
Nashville, TN 37214.

Texas

    Galveston District Engineer, ATTN: CESWG-PE-R, P.O. Box 1229, 
Galveston, TX 77553-1229.

Utah

    Sacramento District Engineer, ATTN: CESPK-CO-R, 1325 J Street, CA 
95814-2922.

Vermont

    New England District Engineer, ATTN: CENAE-R, 696 Virginia Road, 
Concord, MA 01742-2751.

Virginia

    Norfolk District Engineer, ATTN: CENAO-OP-R, 803 Front Street, 
Norfolk, VA 23510-1096.

Washington

    Seattle District Engineer, ATTN: CENWS-OP-RG, P.O. Box 3755, 
Seattle, WA 98124-3755.

West Virginia

    Huntington District Engineer, ATTN: CELRH-OR-F, 502 8th Street, 
Huntington, WV 25701-2070.

Wisconsin

    St. Paul District Engineer, ATTN: CEMVP-OP-R, 190 Fifth Street 
East, St. Paul, MN 55101-1638.

Wyoming

    Omaha District Engineer, ATTN: CENWO-OD-R, 106 South 15th Street, 
Omaha, NE 68102-1618.

District of Columbia

    Baltimore District Engineer, ATTN: CENAB-OP-R, P.O. Box 1715, 
Baltimore, MD 21203-1715.

Pacific Territories (American Samoa, Guam, & Commonwealth of the 
Northern Mariana Islands)

    Honolulu District Engineer, ATTN: CEPOH-EC-R, Building 230, Fort 
Shafter, Honolulu, HI 96858-5440.

Puerto Rico and Virgin Islands

    Jacksonville District Engineer, ATTN: CESAJ-RD, P.O. Box 4970, 
Jacksonville, FL 32232-0019.

Request for Comment

    We are proposing to reissue all nationwide permits, general 
conditions, and definitions. Substantive changes to the nationwide 
permits, general conditions, and definitions are discussed below, but 
we are soliciting comments on all the nationwide permits, general 
conditions, and definitions. Minor grammatical changes, the removal of 
redundant language, and other small changes are not discussed in the 
preamble below. Therefore, commenters should carefully read each 
proposed NWP, general condition, and definition in this notice.

Discussion of Proposed Modifications to Existing Nationwide Permits

    The proposed changes to the existing NWPs fall into two categories:
    Category 1 (Cat 1)--Proposed clarification of an existing NWP by 
making minor changes to the text of the NWP. It does not change the 
scope of activities authorized by the existing NWP.
    Category 2 (Cat 2)--Proposed modification of an existing NWP that 
changes the scope of activities authorized by that NWP, or its 
substantive requirements.
    If an existing NWP is not listed in this section of the preamble, 
we are proposing to reissue the NWP without changing it.
    We are proposing to modify many of the NWPs so that they follow a 
standard format: A description of activities the NWP authorizes, 
followed by a description of activities the NWP does not authorized (if 
applicable). Any pre-construction notification requirements are 
provided in a separate paragraph. Any ``notes'' for the NWP are 
provided at the end of the NWP. In many NWPs we are proposing to remove 
explicit references to the NWP regulations or general conditions, to 
simplify the text of those NWPs since the regulations and general 
conditions apply to all NWPs that authorize activities addressed by a 
particular provision. For example, general condition 3 requires that 
activities in spawning areas during spawning season be avoided to the 
maximum extent practicable. This requirement applies to all NWPs that 
may authorize activities in spawning areas. In cases where specific 
requirements or actions are necessary to ensure that a particular 
activity complies with NWP general conditions, district engineers 
should add special conditions to the NWP authorization for that 
activity. For example, for an NWP activity that will occur in a stream 
or other waterbody with spawning areas, special conditions may need to 
be added to the NWP authorization that impose time-of-year restrictions 
for conducting that activity, to minimize adverse effects to those 
spawning areas. If the area in the vicinity of the project site does 
not contain spawning areas, then this general condition would not apply 
to that NWP activity.
    NWP 3. Maintenance. (Cat 2) We are proposing to restructure and 
simplify this NWP by shifting some of the activities currently 
authorized by NWP 3 to the proposed new NWP A, Emergency Repair 
Activities. Specifically we are proposing to remove the last two 
sentences of paragraph (i) and the entire paragraph (iii) that are in 
the current NWP 3 to the proposed new NWP A. We are also proposing to 
remove the definition of ``currently serviceable'' from the first 
paragraph of this NWP and place that definition in the ``Definitions'' 
section, because that term is also used in NWP 41, ``Reshaping Existing 
Drainage Ditches'' and proposed NWP C, ``Pipeline Safety Program 
Designated Time Sensitive Inspections and Repairs.'' The term 
``currently serviceable'' means useable as is or with some maintenance, 
but not so degraded as to essentially require reconstruction.
    We are proposing to move the provisions regarding the removal of 
accumulated sediments from outfall and intake structures and associated 
canals from the current NWP 7 (which authorizes construction of outfall 
and associated intake structures) to paragraph (b) of the proposed NWP 
3. The 200 foot linear limit for the removal of accumulated sediments 
in existing NWP 3 would not apply to situations where sediments are 
blocking or restricting outfall or intake structures, or to maintenance 
dredging to remove accumulated sediments from canals associated with 
outfall and intake structures. Pre-construction notification is 
required for all activities authorized under paragraph (b) of this NWP. 
The proposed changes to NWP 3 will consolidate within a single NWP the 
authorization for removal of accumulated sediments from existing 
structures and from canals associated with intake and outfall 
structures.

[[Page 56266]]

    To simplify the text of this NWP, we are proposing to remove the 
explicit references to the ``water quality'' and ``management of water 
flows'' general conditions, although these general conditions still 
apply. We are also proposing to add language to paragraph (c), to 
clarify that if temporary fills, structures, or work are required to 
conduct the maintenance activity, then separate authorization may be 
required. For example, it may be necessary to discharge dredged or fill 
material into waters of the United States to construct a cofferdam, so 
that the maintenance activity can be completed. The authorization for 
the temporary fills, structures, or work may be provided by NWP 33, 
Temporary Construction, Access, and Dewatering. We are proposing to 
modify the notification provision of this NWP to require information 
about original design capacities and configurations of structures and 
other features where maintenance dredging is proposed. That provision 
was adapted from the requirements for the current NWP 7 and will allow 
the district engineer to ensure compliance with the requirement that 
limits the removal of sediment to the minimum necessary to restore the 
waterway to its approximate dimensions when the structure was built.
    NWP 4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. (Cat 2) We are proposing to remove the text 
authorizing shellfish seeding, since that activity would be authorized 
by proposed NWP D (if the activity is an existing commercial shellfish 
aquaculture operation) or NWP 27 (if it is conducted for restoration 
activities).
    NWP 5. Scientific Measurement Devices. (Cat 2) We are proposing to 
remove the PCN requirement for discharges of 10 to 25 cubic yards for 
the construction of small weirs and flumes, however, we would still 
retain the 25 cubic yard limit for such construction. Division 
engineers can regionally condition this NWP to require PCNs for certain 
activities, including discharges that exceed a specified threshold for 
the construction of small weirs and flumes, where necessary to ensure 
minimal adverse effects.
    NWP 6. Survey Activities. (Cat 2) We are proposing to add 
exploratory trenching to the list of examples of activities authorized 
by this NWP, as well as a requirement to restore the trenched area to 
its pre-construction elevations upon completion of the work. District 
engineers have used this NWP to authorize exploratory trenching, with 
minimal adverse effects on the aquatic environment. In the text of this 
NWP, we are proposing a definition of ``exploratory trenching.'' We are 
also proposing to modify this NWP to authorize the construction of 
temporary pads used for survey activities, provided the discharge does 
not exceed 25 cubic yards. The construction of temporary pads is often 
necessary to provide proper levels for equipment used for core 
sampling.
    NWP 7. Outfall Structures and Associated Intake Structures. (Cat 2) 
We are proposing to change the title of this NWP to more clearly 
describe what it authorizes. As discussed in the section on the 
proposed changes to NWP 3, we are proposing to remove the provisions 
regarding the removal of accumulated sediments from outfall and intake 
structures and associated canals, and place them in paragraph (b) of 
NWP 3. This proposed change will simplify NWP 7, and the removal of 
accumulated sediments may be authorized by NWP 3 instead.
    NWP 8. Oil and Gas Structures on the Outer Continental Shelf. (Cat 
1) We are proposing to change the title of this NWP to more clearly 
articulate what it authorizes. We are also proposing to modify this NWP 
to require pre-construction notification for all activities, to allow 
district engineers to review potential effects on navigation and 
national security. Requiring PCNs for all activities will also provide 
district engineers the opportunity to review compliance with fairway 
regulations, and exercise discretionary authority where limits of 
shipping safety fairways or traffic separation schemes have not been 
designated or where changes may occur.
    NWP 12. Utility Line Activities. (Cat 2) We are proposing several 
modifications to this NWP. For this proposed modification of this NWP, 
the \1/2\ acre limit still applies to each single and complete project, 
as defined at 33 CFR 330.2(i) and the ``Definitions'' section of the 
NWPs.
    To reduce duplication in the NWPs, we are proposing to modify this 
NWP by removing the provision for the construction of access roads. 
Permanent or temporary access roads may be authorized by NWPs 14 or 33, 
respectively, or by individual permits or regional general permits. As 
a result of this proposed change, Note 2 of the current NWP 12 would be 
removed.
    We are proposing to move the term that requires mitigation for 
permanent adverse effects to the functions and services of waters of 
the United States to paragraph (g) of the ``mitigation'' general 
condition (GC 20). District engineers may require compensatory 
mitigation for such impacts, if necessary, to ensure that the utility 
line activity results in minimal individual and cumulative adverse 
effects on the aquatic environment.
    We are also proposing to simplify the PCN thresholds for this NWP, 
by requiring notification only for those utility line activities that 
require a section 10 permit or that involve discharges of dredged or 
fill material resulting in the permanent or temporary loss of greater 
than \1/10\ acre of waters of the United States.
    We are proposing to redesignate Note 3 as Note 1, and move the 
first part of the former Note 1 to the main text of NWP 12. The second 
part of former Note 1 would become Note 2 of the proposed modification 
of NWP 12.
    NWP 13. Bank stabilization. (Cat 2) We are proposing to modify this 
NWP to clarify that district engineers may authorize bank stabilization 
activities longer than 500 linear feet, or that result in the discharge 
of more than one cubic yard of material per running foot below the 
plane of the ordinary high water mark or high tide line. Bank 
stabilization activities that exceed either of these thresholds require 
pre-construction notification. In response to PCNs, district engineers 
can issue written waivers of these limits provided the proposed 
activities will result in minimal individual and cumulative adverse 
effects on the aquatic environment.
    We are also proposing to modify this NWP by requiring PCNs for bank 
stabilization activities that involve discharges of dredged or fill 
material into special aquatic sites, so that district engineers can 
authorize those activities if they determine that the individual and 
cumulative adverse effects on the aquatic environment are minimal. This 
will replace the current prohibition against the placement of materials 
in any special aquatic site, including wetlands. In some circumstances, 
it may be more beneficial to the watershed to stabilize eroding banks, 
even though small amounts of fringe wetlands or mudflats may be 
impacted by the bank stabilization activity. District engineers will 
exercise discretionary authority to require an individual permit if the 
proposed work would result in more than minimal adverse effects to 
special aquatic sites.
    We are proposing to remove the provision requiring that the 
``activity is part of a single and complete project'', since that 
requirement applies to all NWPs. The phrase ``single and complete 
project'' is defined at 33 CFR 330.2(i) and the ``Definitions'' section 
of the NWPs. In place of the general statement

[[Page 56267]]

that the NWP may not be used to channelize a water of the United 
States, we are also proposing to clarify that NWP 13 does not authorize 
stream channelization activities.
    NWP 14. Linear Transportation Projects. (Cat 1) We are proposing to 
restructure this NWP to make it easier to understand, but the general 
scope of authorized activities is unchanged. The acreage limits and PCN 
thresholds are the same as before. In the first paragraph of this NWP, 
we are proposing to replace the word ``crossings'' with ``projects,'' 
to be consistent with the title of this NWP.
    We are proposing to add a new condition to this NWP, to limit 
stream channel modifications to the minimum necessary to construct or 
protect linear transportation projects. We are also proposing to add 
language clarifying that NWP 14 does not authorize temporary 
construction, access, and dewatering activities; those activities may 
be authorized by NWP 33. That language is intended to support our 
objective to reduce duplication in the NWPs, since NWPs 14 and 33 can 
be combined to authorize single and complete linear transportation 
projects that involve temporary construction impacts, provided there is 
compliance with the ``use of multiple nationwide permits'' general 
condition (GC 24).
    We are proposing to remove the explicit requirement that the PCN 
include a compensatory mitigation proposal. The compensatory mitigation 
requirements for the NWPs are addressed in the ``mitigation'' general 
condition (GC 20).
    To simplify this NWP, we are also proposing to remove other 
redundant language: (1) The text requiring delineations of special 
aquatic sites to be submitted with PCNs, which is addressed by 
paragraph (b)(4) of the ``pre-construction notification'' general 
condition (GC 27); (2) the text requiring that the width of the fill be 
limited to the minimum size necessary, which is addressed by the 
``mitigation'' general condition (GC 20); (3) the references to the 
``management of water flows'' and ``water quality'' general conditions; 
and (4) the requirement that the linear transportation project be a 
single and complete project, since that requirement applies to all NWPs 
(see 33 CFR 330.2(i)).
    NWP 16. Return Water From Upland Contained Disposal Areas. (Cat 1) 
We are proposing to rearrange the text of this NWP so that it will be 
consistent with the format of the other NWPs. We are not proposing any 
changes to the terms of this NWP.
    NWP 17. Hydropower Projects. (Cat 1) We are proposing to rearrange 
the text of this NWP, without modifying any of its terms or its scope.
    NWP 18. Minor Discharges. (Cat 2) To enhance protection of the 
aquatic environment, we are proposing to modify this NWP by applying 
the \1/10\ acre limit to all losses of waters of the United States, not 
just special aquatic sites. This proposed change will also help 
simplify this NWP. We are also proposing to eliminate the second 
sentence of paragraph (b) of this NWP, since the concepts in that 
sentence are already addressed in the definition of ``loss of waters of 
the United States.'' We are proposing to remove the text requiring a 
delineation of special aquatic sites, since it will be addressed in 
paragraph (b)(4) of the ``pre-construction notification'' general 
condition (GC 27). We are also proposing to remove the language 
relating to the requirement that the discharge be part of a single and 
complete project, since that requirement applies to all NWPs.
    NWP 19. Minor Dredging. (Cat 1) We are proposing to remove the 
phrase ``as part of a single and complete project,'' since that 
requirement applies to all NWPs and it is not necessary to include that 
phrase in the text of this NWP.
    NWP 21. Surface Coal Mining Operations. (Cat 1) We are proposing to 
reissue NWP 21 to authorize discharges of dredged or fill material into 
waters of the United States associated with surface coal mining 
operations such as contour mining, mountaintop mining, and area mining. 
While surface coal mining operations occur throughout the United 
States, the majority of mines that create excess spoil material are 
located in the Appalachian coalfields region, many in steep slope 
terrains. These types of mining frequently result in excess spoil 
material being created that may not safely be placed back on the mine 
site. Other permanent impacts may include permanent stream diversions 
and/or relocations, fill for coal processing plants, and coal 
processing waste areas. Temporary impacts to waters of the United 
States frequently include temporary stream relocations, road crossings, 
and sediment ponds. Surface coal mining activities may also involve 
disturbances to stream channels. Coal deposits underlie many streams at 
shallow depths and mining activities routinely divert and relocate 
watercourses to remove the coal.
    An integrated permit processing procedure is envisioned by the 
Joint Procedures Framework Memorandum of Understanding signed by the 
Corps, U.S. EPA, U.S. FWS and Office of Surface Mining (OSM) on 
February 8, 2005. It is a collaborative process in which the Surface 
Mining Control and Reclamation Act authority chooses to be the lead 
agency in coordinating interagency review of applications for surface 
coal mining operations, while preserving the authorities and 
responsibilities of each agency for permit decisions. This should 
result in concurrent reviews by the agencies, reduce duplication, and 
allow for joint pre-application and public meetings and joint site 
visits. To date at least one state (Ohio) has initiated an integrated 
permit process, and several other states, such as Washington, are 
having discussions.
    This NWP is used to provide section 404 authorization for surface 
coal mining activities that have also been authorized by the Office of 
Surface Mining (OSM) or states with approved programs under Title V of 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). One of 
the objectives of NWP 21 is to reduce duplication between the SMCRA and 
Section 404 permitting processes when authorizing surface coal mining 
projects. In previous versions of NWP 21, there has not been a limit on 
either the acreage or linear feet of waters and streams that could be 
impacted. This was based partly on the belief that the analyses and 
environmental protection performance standards required by SMCRA, in 
conjunction with PCN review, are generally sufficient to ensure that 
NWP 21 activities result in minimal individual and cumulative adverse 
effects on the aquatic environment. Under SMCRA requirements, surface 
coal mine operators must minimize adverse impacts to fish and wildlife 
habitat and material damage to the hydrologic balance within the 
project area. They must also prevent material damage to the hydrologic 
balance in surrounding areas. OSM is in the process of developing 
revisions to its excess spoil disposal rules that would provide 
additional protection for streams.
    However, in processing PCNs for NWP 21, the Corps does not rely 
solely on the SMRCA process to ensure compliance with the requirements 
of the Clean Water Act (CWA). Additional measures, such as compensatory 
mitigation to offset losses of aquatic resource functions, are often 
needed to ensure that NWP 21 activities result in minimal individual 
and cumulative adverse effects on the aquatic environment. The SMCRA 
process is used to identify where surface coal mining activities will 
occur, and in Appalachia the SMCRA process is used

[[Page 56268]]

to identify the number and location of valley fills. The PCN process is 
used to determine what compensatory mitigation is needed to satisfy the 
404(b)(1) Guidelines and ensure that individual and cumulative impacts 
are minimal. While activities performed to satisfy SMCRA requirements 
may be considered in determining compensatory mitigation requirements 
under Section 404, there is no presumption that these activities by 
themselves are sufficient. Through an April 1999 Memorandum of 
Understanding (MOU) signed by the COE, EPA, OSM, FWS, and the West 
Virginia Department of Environmental Protection (WVDEP), the agencies 
agreed to conduct joint permit application reviews for surface coal 
mining projects in West Virginia which impacted streams draining 
watersheds of 250 acres or greater and these activities were required 
to obtain individual permits. Partly as a result of the MOU, many 
surface coal mining projects in the Huntington District are now 
authorized under individual permits. The MOU was rescinded after the 
Mountaintop Mining/Valley Fill Programmatic Environmental Impact 
Statement was finalized.
    In 2002, the Corps attempted to address concerns about the impacts 
of NWP 21 by requiring that all NWP 21 projects, of any size, file a 
PCN with the Corps and wait for written authorization from the Corps 
before beginning work. In contrast, most NWPs allow the project sponsor 
to begin work 45 days after filing a complete PCN, unless the sponsor 
has heard explicitly from the Corps that the work is not authorized.
    To further strengthen its process for reviewing PCNs, on March 19, 
2004, the Corps issued a standard operating procedure (SOP) for NWP 21 
processing. This SOP was developed to improve consistency, and to 
enhance predictability and certainty. The procedures in the SOP make 
the NWP 21 PCN review process similar to the individual permit review 
process, such as the requirement for agency coordination on all 
proposed NWP 21 activities. The SOP lists the types of information 
needed by the Corps to make minimal impact determinations for proposed 
NWP 21 activities. Functional assessments appropriate to the region in 
which a proposed NWP 21 activity is located are required to assess 
stream quality and wetland impacts. The SOP also discusses requirements 
for compensatory mitigation projects, including monitoring requirements 
and financial assurances, in cases where compensatory mitigation is 
necessary to ensure that an NWP 21 activity results in minimal 
individual and cumulative adverse effects on the aquatic environment. 
Further guidance on compensatory mitigation for impacts to aquatic 
resources resulting from surface coal mining activities was issued by 
the Corps on May 7, 2004.
    However, we have continued to hear concerns from some stakeholders 
about the lack of an acreage limit for NWP 21. In response, we are 
seeking comment on the need for an acreage, or other type, of limit for 
this NWP. Commenters should address the appropriate scientific and 
environmental basis for determining whether there is a need for a 
limit, and discuss types of possible limits (e.g., acreage or stream 
length impacted, watershed drained). Commenters should also indicate 
whether it is appropriate to maintain or modify the current 
notification requirements if a limit is added, since these were adopted 
partially in response to concerns about the lack of a limit.
    The terms and conditions of NWP 21, in conjunction with SMCRA 
requirements, the PCN review process, and any compensatory mitigation 
required under general condition 20, will ensure that this NWP 
authorizes only those activities with minimal individual and cumulative 
adverse effects on the aquatic environment.
    We are proposing to remove the text stating that the district 
engineer may require a bond to ensure the success of mitigation, since 
the district engineer has the discretion to impose that requirement on 
any NWP activity where mitigation is required. As with the current NWP 
21, compensatory mitigation for impacts resulting in the loss of 
aquatic resources that is required by OSM or the state may be 
considered when determining compensatory mitigation for NWP 21 
activities. In accordance with our proposed revisions to the ``pre-
construction notification'' general condition (GC 27), all NWP PCNs 
require submission of delineations of waters of the United States, 
including special aquatic sites (see paragraph (b)(4) of that general 
condition).
    Division engineers can regionally condition this NWP to impose an 
acreage or linear foot limit or other special conditions, if there are 
concerns for the aquatic environment in a particular district, 
watershed, or other geographic region.
    NWP 22. Removal of Vessels. (Cat 2) We are proposing rearrange the 
text of this NWP so that it is in a format similar to the other NWPs. 
We are also proposing to require a PCN if the vessel removal activity 
involves discharges of dredged or fill material into special aquatic 
sites. We are proposing to move the term addressing vessel disposal in 
waters of the United States to the ``Note'' at the end of the NWP. We 
are proposing to clarify that vessel disposal in waters of the United 
States requires separate authorization, if a Corps permit is required.
    NWP 23. Approved Categorical Exclusions. (Cat 1) We are proposing 
to modify this NWP by reorganizing the text to make it easier to read. 
We are proposing to add the phrase ``including pre-construction 
notification requirements'' to paragraph (c) of this NWP to clarify 
that some activities eligible for NWP authorization may require 
submission of PCNs to district engineers prior to commencing the 
activity. We are also proposing to change the Corps office designation 
from CECW-OR to CECW-CO to reflect organizational changes at Corps 
Headquarters.
    In the ``Notification'' provision, we are proposing to add a 
sentence to explain that there are Regulatory Guidance Letters (RGLs) 
that list the approved activities that require submission of PCNs. 
Prospective permittees should review the appropriate RGL to determine 
if an approved activity requires submittal of a PCN to the district 
engineer prior to beginning the activity. The current activities that 
have been approved (i.e., the Chief of Engineers has concurred that 
they are categorically excluded) for use of NWP 23 are provided in RGL 
05-07.
    We are also proposing to add a ``Note'' to this NWP, to clarify 
that agencies may submit requests to the Office of the Chief of 
Engineers to include additional activities as approved for 
authorization under NWP 23. Upon receipt of such requests, we will 
conduct a public notice and comment process to determine whether the 
proposed activities are in fact categorically excluded. Additional 
activities approved for use of NWP 23 would be announced in an RGL, 
which would be posted at the internet address indicated in the 
``Note.''
    NWP 24. Indian Tribe or State Administered Section 404 Programs. 
(Cat 2) We are proposing to modify this NWP to include Indian Tribes. 
Section 518(e) of the Clean Water Act authorizes the U.S. EPA 
Administrator to treat an Indian Tribe as eligible for assuming the 
section 404 permit program. Currently, only two States (Michigan and 
New Jersey) and no Indian Tribes are approved to administer the section 
404 program, and we are proposing to add a note to list those states. 
We are also proposing to move the text clarifying that certain 
structures in navigable

[[Page 56269]]

waters do not require section 10 permits to a note.
    NWP 27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. (Cat 2) We are proposing to change the title of this NWP to 
more accurately reflect the types of activities it authorizes, since 
aquatic habitats other than streams and wetlands can be restored, 
established, or enhanced by activities authorized by this NWP. The term 
``creation'' would be replaced with ``establishment,'' to conform with 
the terminology in Regulatory Guidance Letter 02-02 for wetland project 
types and the definition in the Council on Environmental Quality's 
April 2006 report entitled ``Conserving America's Wetlands 2006: Two 
Years of Progress Implementing the President's Goal.'' We are proposing 
to modify this NWP to prohibit the conversion of natural wetlands to 
another aquatic use, but the relocation of non-tidal wetlands on the 
project site would still be authorized provided certain conditions are 
met. In addition, we are proposing to add shellfish seeding to the list 
of examples of authorized activities, since shellfish seeding is used 
to restore oyster populations.
    We are also proposing to modify this NWP to require permittees to 
submit copies of: Binding wetland enhancement, restoration, or 
establishment agreements; NRCS documentation for voluntary wetland 
restoration, enhancement, or establishment actions; or Surface Mining 
Control and Reclamation Act (SMCRA) permits issued by the Office of 
Surface Mining or the applicable state agency. These documents must be 
submitted to the district engineer at least 30 days prior to commencing 
activities in waters of the United States authorized by this NWP. 
Standard PCNs are not required for activities conducted pursuant to one 
of these instruments (except reversion activities; see below), but the 
submission of these already prepared documents will allow the Corps to 
ensure that the conditions for use of the NWP have been satisfied, with 
minimal burden to the project proponent.
    We are proposing to replace ``values'' with ``services'' because 
ecosystem services provide more objective measures of the importance of 
aquatic resource functions to human populations. Services are the 
benefits that humans derive from the functions performed by wetlands 
and other aquatic resources. Examples of wetland services include flood 
damage reduction, water quality improvement, and opportunities for 
viewing birds and other wildlife. Aquatic resource restoration, 
establishment, and enhancement activities authorized by this NWP are 
likely to provide ecosystem services that benefit human populations. 
Values of aquatic resources are difficult to describe objectively, and 
are usually dependent on the point of view of the person making the 
assessment. Values may relate to either monetary or non-monetary 
measures, whereas services can be described in physical terms that are 
easier to evaluate and address, where necessary, in NWP authorization 
letters and special permit conditions.
    We are proposing to modify the reversion provision of this NWP by 
adding the Farm Service Agency (FSA) and appropriate designated state 
cooperating agencies of the U.S. Fish and Wildlife Service, Natural 
Resources Conservation Service, FSA, National Marine Fisheries Service, 
and National Ocean Service to the list of agencies that may execute 
wetland restoration, enhancement, or establishment agreements with 
landowners. This NWP authorizes discharges of dredged or fill material 
in waters of the United States for the reversion of wetlands that were 
restored, enhanced, or established on prior-converted cropland that has 
not been abandoned or on uplands, in accordance with a binding 
agreement between the landowner and NRCS, FSA, FWS, or their designated 
state cooperating agencies. There may be cases where the designated 
state cooperating agency has taken over the operational aspects of 
executing wetland restoration, enhancement, or establishment agreements 
with landowners for those federal agencies. The Conservation Reserve 
Enhancement Program (CREP) administered by FSA may involve wetland 
restoration, enhancement, and/or establishment activities, and this 
program may be delegated to state agencies for implementation. A CREP 
contract between the landowner and the administering agency may be for 
a term of 10 to 15 years. We are also proposing to add the phrase ``or 
on uplands'' to the third sentence of this paragraph, since wetlands 
may be established on uplands as a result of an agreement between the 
landowner and another government agency.
    We are also proposing to modify this NWP by moving the requirement 
to notify the district engineer prior to conducting any reversion 
activities to the ``Notification'' provision. The ``Notification'' 
provision requires the permittee or appropriate Federal or State agency 
to notify the district engineer in accordance with general condition 
27. For reversion activities, the permittee must show that the activity 
qualifies for reversion by providing documentation showing that a prior 
agreement has expired, or that the reversion activity is otherwise 
authorized. This documentation may consist of either: (1) A copy of the 
original wetland enhancement, restoration, or establishment agreement 
between the landowner and the NRCS, FSA, FWS, or appropriate designated 
state cooperating agency that shows the expiration date, if the 
agreement has an expiration date; (2) the NRCS documentation for 
voluntary wetland enhancement, restoration, and establishment actions 
demonstrating compliance with NRCS regulations; or (3) a copy of the 
SMCRA permit issued by the OSM or applicable state agency.
    We are proposing to modify the ``Note'' at the end of this NWP, by 
removing the first sentence. Since the first paragraph of this NWP 
states that it authorizes only those activities that result in a net 
increase in aquatic resource functions and services (except for 
authorized reversion activities), it is redundant to restate this 
requirement in the Note. We are also proposing to remove the text 
stating that compensatory mitigation is required for impacts to waters 
of the United States caused by the authorized construction of 
compensatory mitigation projects, including mitigation banks and in-
lieu fee programs.
    In addition, we are proposing to remove the last sentence of the 
``Note,'' which states that NWP 27 can be used to authorize the 
construction of a mitigation bank only when that bank has been approved 
in accordance with the procedures in the interagency mitigation banking 
guidance issued on November 28, 1995 (60 FR 58605). This provision is 
contrary to the 1995 guidance, which states that a bank sponsor may 
proceed, at his or her own risk, with the construction of the 
mitigation bank after receiving the Department of the Army permit, if 
the mitigation banking instrument has not yet been approved.
    NWP 29. Residential Developments. (Cat 2) We are proposing to 
combine NWP 29 and the provisions of NWP 39 pertaining to residential 
developments into a single nationwide permit that authorizes single 
unit residences (e.g., single family homes) and multiple unit 
residential developments. In other words, we are proposing that NWP 29 
authorize both single unit and multiple unit residential developments 
while NWP 39 would authorize commercial and institutional developments 
because residential developments differ from commercial and 
institutional

[[Page 56270]]

developments. In addition, residential developments are often subject 
to different state and local requirements. We are seeking comments on 
the appropriateness of having separate NWPs to authorize residential 
developments and commercial and institutional developments.
    We are proposing to require PCNs for all activities authorized by 
this NWP, to ensure that those activities result in minimal individual 
and cumulative adverse effects to the aquatic environment and other 
public interest review factors, such as floodplain values.
    The proposed acreage limit is \1/2\ acre, and that acreage limit 
includes any losses of waters of the United States resulting from 
filling or excavating stream beds. We are also proposing to impose a 
300 linear foot limit on the loss of stream bed. For intermittent and 
ephemeral stream beds, a district engineer can waive the 300 linear 
foot limit on a case-by-case basis, if he determines that the adverse 
effects on the aquatic environment are minimal, individually and 
cumulatively. These waivers must be issued in writing by the district 
engineer. The 300 linear foot limit cannot be waived for perennial 
stream beds.
    The proposed modification of this NWP provides more protection of 
the aquatic environment. The proposed NWP can be used in a narrower 
scope of waters than the current NWP 29. The current NWP 29 authorizes 
discharges of dredged or fill material into all non-tidal waters of the 
United States, including those non-tidal wetlands that are adjacent to 
tidal waters. The proposed modification of NWP 29 does not authorize 
discharges of dredged or fill material into non-tidal wetlands adjacent 
to tidal waters. The current NWP 39 authorizes both single unit and 
multiple unit residential developments with a \/2\ acre limit for 
discharges of dredged or fill material into non-tidal waters, except 
for non-tidal wetlands adjacent to tidal waters. In effect, the current 
NWP 29 is being eliminated, and we are proposing to replace it with the 
provisions of the current NWP 39 that authorize single and multiple 
unit residential developments.
    We are proposing to remove the text requiring permittees to 
minimize on- and off-site impacts and avoid flooding, since those 
requirements are addressed by the ``mitigation'' general condition (GC 
20) and the ``management of water flows'' general condition (GC 9). We 
are proposing to remove the text requiring the maintenance of vegetated 
buffers next to open waters, since paragraph (d) of general condition 
20 states that district engineers may require the establishment and 
maintenance of riparian areas next to streams and other open waters. We 
are proposing to eliminate the text defining the acreage loss of waters 
of the United States, since there is a definition of ``loss of waters 
of the United States'' in the ``Definitions'' section of the NWPs.
    We are also proposing to eliminate the condition restricting the 
use of NWP 29 to those individuals constructing single family homes for 
personal use, as well as the definitions for ``individual'' and 
``parcel of land.'' We believe that it is inappropriate to establish 
different permits for single and multiple residential development 
because the impacts to the aquatic environment are determined by the 
permit conditions themselves (e.g., \1/2\ acre limit) and not the type 
of residential development or the type of permittee. Each proposed NWP 
29 activity will be evaluated through the PCN process to determine if 
the activity qualifies for NWP authorization.
    This NWP can be used to authorize discharges of dredged or fill 
material into non-tidal waters of the United States (other than non-
tidal wetlands adjacent to tidal waters) to construct building 
foundations and pads, as well as attendant features. The examples of 
attendant features listed in this NWP were taken from the current NWP 
39. The scope of applicable waters is the same as the current NWP 39. 
We are proposing to retain the residential subdivision provision from 
the current NWP 39.
    In response to a PCN, the district engineer may impose special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, allows for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.
    NWP 30. Moist Soil Management for Wildlife. (Cat 2) We are 
proposing to modify this NWP by removing the phrase ``performed on non-
tidal Federally-owned or managed, State-owned or managed property, and 
local government agency-owned or managed property, for''. Removal of 
this phase will allow any landowner to use this NWP to authorize 
discharges of dredged or fill material into non-tidal waters of the 
United States for the purpose of managing wildlife habitat and feeding 
areas. We do not believe this NWP should be restricted to government 
agencies, since many private landowners have an interest in attracting 
and supporting various species of wildlife, and can do these activities 
without causing more than minimal adverse environmental effects.
    We are also proposing to remove the phrase ``[t]he repair, 
maintenance or replacement of existing water control structures; the 
repair or maintenance of dikes; and'' since those activities may be 
authorized by NWP 3. In its place, we are proposing to add an 
explanatory ``Note'' at the end of the NWP. For the reasons provided in 
the preamble discussion of the definition of ``riparian areas,'' we are 
proposing to replace the phrase ``vegetated buffers'' with ``riparian 
areas.''
    NWP 31. Maintenance of Existing Flood Control Facilities. (Cat 1) 
We are proposing to remove the last sentence of the first paragraph of 
this NWP, which discussed certain types of maintenance activities that 
do not require section 404 permits, since that issue is more 
appropriately addressed through the Corps current definition of 
``discharge of dredged material'' at 33 CFR 323.2(d).
    We are proposing to add ``levees'' to the list of features that can 
be maintained through the authorization provided by this NWP, since 
levees are often integral parts of flood control facilities. Discharges 
of dredged or fill material in waters of the United States for levee 
maintenance may be authorized by this NWP, provided the levees are 
included in the maintenance baseline.
    NWP 32. Completed Enforcement Actions. (Cat 1) We are proposing to 
eliminate the phrase ``For either (i), (ii), or (iii) above,'' from the 
last paragraph of this NWP. This phrase is unnecessary because 
permittees must comply with all applicable terms and conditions of any 
NWP. We are also proposing to remove the phrase ``or fails to complete 
the work by the specified completion date'' since the completion date 
should be specified in the court decision, consent decree, or judicial/
non-judicial settlement agreement.
    NWP 33. Temporary Construction, Access, and Dewatering. (Cat 1) We 
are proposing to divide the first sentence of this NWP into two 
sentences, to clarify that temporary structures or work in navigable 
waters of the United States or discharges of dredged or fill material 
in waters of the United States associated with construction activities 
that do not require permits from the Corps or the U.S. Coast Guard, as 
well as those that do require and have obtained such permits, are 
authorized by this NWP. We are also proposing to move the requirement 
for a restoration plan from the ``pre-construction notification''

[[Page 56271]]

general condition (general condition 13 of the 2002 NWPs) to the 
``Notification'' paragraph of this NWP. The PCN must include a 
restoration plan showing how all temporary fills and structures will be 
removed and the area restored to pre-project conditions. The 
restoration plan should also describe reasonable measures for avoidance 
and minimization of adverse effects to aquatic resources. We are 
proposing to remove the sentence that states that the district engineer 
will add special conditions to ensure minimal adverse effects, since 
the addition of special conditions where necessary to ensure minimal 
adverse effects is a condition of all NWPs.
    NWP 34. Cranberry Production Activities. (Cat 1) We are proposing 
to rearrange the text of this NWP, to conform with the general format 
of the proposed NWPs, and to eliminate the phrase ``provided the 
activity meets all of the following criteria:'' since activities must 
comply with all terms and conditions of an NWP. We are also proposing 
to remove the text requiring PCNs to include delineations of special 
aquatic sites, since that requirement is addressed by paragraph (b)(4) 
of the proposed modification of the ``pre-construction notification'' 
general condition (GC 27).
    We are proposing to modify this NWP to clarify that an existing 
cranberry production operation needs to submit a pre-construction 
notification only once during the period that this NWP is valid. The 
NWP authorization would apply to on-going discharges of dredged or fill 
material into waters of the United States, provided the 10 acre limit 
is not exceeded.
    NWP 36. Boat Ramps. (Cat 2) We are proposing to modify this NWP to 
allow district engineers to issue, on a case-by-case basis after 
reviewing pre-construction notifications, waivers to the 50 cubic yard 
limit for discharges of dredged or fill material into waters of the 
United States to construct a boat ramp. We are also proposing to allow 
district engineers to issue waivers to the 20 foot width limit for boat 
ramps. These waivers can be issued only if, after reviewing a pre-
construction notification, the district engineer determines that the 
adverse effects on the aquatic environment and other factors of the 
public interest will be minimal. These waivers must be issued in 
writing by the district engineer.
    We are proposing to modify this NWP to require pre-construction 
notification if the proposed boat ramp involves discharges of more than 
50 cubic yards of dredged or fill material into waters of the United 
States, or if the proposed boat ramp is greater than 20 feet wide.
    We are also proposing to remove the text prohibiting the use of 
material that may cause unacceptable chemical pollution, since that 
issue is addressed by the ``suitable material'' general condition (GC 
6).
    NWP 37. Emergency Watershed Protection and Rehabilitation. (Cat 1) 
We are proposing to rearrange the text of this NWP to conform with the 
format of the proposed modified NWPs, but it will not change the scope 
of activities authorized by this NWP.
    NWP 38. Cleanup of Hazardous and Toxic Waste. (Cat 1) We are 
proposing to modify this NWP by moving the requirement to submit a 
delineation of waters of the United States to paragraph (b)(4) of the 
``pre-construction notification'' general condition (GC 27). We are 
also proposing to move the last sentence of this NWP to a ``Note'' at 
the end of the NWP.
    NWP 39. Commercial and Institutional Developments. (Cat 2) We are 
proposing to remove residential developments as an authorized activity 
from this NWP and modify NWP 29 to authorize both single unit and 
multiple unit residential developments. We believe that NWP 39 should 
be modified to authorize only commercial and institutional developments 
because those types of developments differ from residential 
developments in a number of ways. Commercial and institutional 
developments are often subject to different state and local 
requirements than residential developments, such as storm water 
management and infrastructure requirements. Planning and zoning 
requirements for residential, commercial, and institutional 
developments may also be different, which can affect where they are 
located in a watershed. We are soliciting comments on limiting NWP 39 
to authorizing discharges of dredged or fill material into waters of 
the United States to construct or expand commercial and institutional 
developments.
    We are proposing to modify this NWP to require PCNs for all 
activities, to ensure that those activities result in minimal 
individual and cumulative adverse effects on the aquatic environment 
and other public interest review factors, such as floodplain values. 
Since PCNs will be required for all activities authorized by this NWP, 
we are proposing to eliminate the reporting requirement in paragraph 
(i) of the current NWP 39. For the same reason, we are also proposing 
to eliminate the ``Note'' from this NWP.
    We are also proposing to modify the 300 linear foot limit for the 
loss of stream bed to apply that limit to ephemeral streams. We are 
proposing to allow district engineers to waive the 300 linear foot 
limit, if the loss of intermittent or ephemeral stream bed will have 
minimal individual and cumulative adverse effects on the aquatic 
environment. These waivers must be issued in writing by the district 
engineer.
    Another modification we are proposing is to move the requirement to 
submit a delineation of waters of the United States to paragraph (b)(4) 
of the ``pre-construction notification'' general condition (GC 27). 
Since we are proposing to modify this NWP to require PCNs for all 
activities and because the ``mitigation'' general condition (GC 20) 
requires permittees to avoid and minimize adverse effects to the 
maximum extent practicable on the project site, we are proposing to 
remove the text requiring submittal of a written avoidance and 
minimization statement and a compensatory mitigation proposal with the 
PCN. District engineers will review PCNs to ensure that all practicable 
on-site avoidance and minimization has been accomplished. In response 
to a PCN, the district engineer may require compensatory mitigation to 
ensure that the authorized activity results in minimal adverse 
environmental effects (see 33 CFR 330.1(e)(3)).
    We are proposing to remove the text requiring the permittee to 
establish and maintain, to the maximum extent practicable, riparian 
areas next to streams and other open waters on the project site, since 
this issue is addressed by paragraph (e) of general condition 20, which 
applies to all NWPs, including NWP 39.
    We are proposing to remove the references to the general conditions 
relating to water quality and the management of water flows, since 
those general conditions apply, as appropriate, to all NWPs.
    In response to a PCN, the district engineer may impose special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, allows for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.
    NWP 40. Agricultural Activities. (Cat 2) We are proposing to modify 
this NWP by eliminating the distinction between permittees that are 
U.S. Department of Agriculture (USDA) program participants and those 
permittees who

[[Page 56272]]

are not USDA program participants. Participants in USDA programs, as 
well as non-participants, are eligible to use this NWP for agricultural 
activities. NRCS would no longer need to determine the applicability of 
this NWP to authorize agricultural activities resulting in discharges 
of dredged or fill material into waters of the United States.
    We are proposing to modify this NWP to require PCNs for all 
activities, for case-by-case review by district engineers to ensure 
that those activities result in minimal individual and cumulative 
adverse effects to the aquatic environment and other public interest 
review factors.
    We are also proposing to modify this NWP to authorize the 
construction of farm ponds in non-tidal waters of the United States, 
excluding perennial streams, where the pond is necessary for 
agricultural production. This NWP would authorize the construction of 
farm ponds that do not qualify for the Clean Water Act Section 
404(f)(1)(C) exemption because of the recapture provision at section 
404(f)(2) of the Act. This NWP does not authorize the construction of 
ponds on non-agricultural land, or the construction of recreational or 
ornamental ponds. We are proposing to limit discharges of dredged or 
fill material for the construction of farm ponds to non-tidal waters, 
other than perennial streams and non-tidal wetlands adjacent to tidal 
waters, to ensure that the construction of the farm pond results in 
minimal individual and cumulative adverse effects on the aquatic 
environment. The construction of ponds in perennial streams is more 
likely to cause more than minimal adverse effects on the aquatic 
environment, by disrupting stream geomorphic processes, as well as 
ecological functions of streams.
    Since we are proposing to modify this NWP to require PCNs for all 
activities, we are removing the explicit requirement to submit a 
compensatory mitigation plan with the PCN. In response to a PCN, the 
district engineer may require compensatory mitigation (see 33 CFR 
330.1(e)(3)) to ensure that the authorized work results in minimal 
adverse effects on the aquatic environment. The ``mitigation'' general 
condition (GC 20) also addresses compensatory mitigation requirements 
for all NWPs. Any compensatory mitigation required for activities 
authorized by this NWP that requires section 404 authorization may be 
authorized by this NWP or NWP 27.
    We are proposing to remove the definition of ``farm tract'' and the 
conditions limiting the use of NWPs 39 and 40 on a particular site, 
since district engineers will receive PCNs for all activities 
authorized by this NWP. District engineers will review PCNs for those 
NWPs to ensure that the proposed work results in minimal individual and 
cumulative adverse environmental effects.
    NWP 41. Reshaping Existing Drainage Ditches. (Cat 2) We are 
proposing to modify this NWP to clarify that it authorizes only the 
reshaping of drainage ditches constructed in waters of the United 
States where the purpose of reshaping the ditch is to improve water 
quality. As a result of this modification, we are also proposing to 
remove the sentence which states why compensatory mitigation is not 
required for the activities authorized by this NWP.
    The purpose of this NWP is to encourage landowners who need to 
maintain drainage ditches constructed in waters of the United States to 
do so in a manner that benefits the aquatic environment. The 
maintenance of a drainage ditch to its current configuration is exempt 
under Section 404(f)(1)(C) of the Clean Water Act, and does not require 
a DA permit. This exemption does not authorize reshaping of existing 
drainage ditches, so this NWP authorizes reshaping activities that 
benefit the aquatic environment. This NWP was first issued on March 9, 
2000, (65 FR 12818) to authorize, to the extent that a section 404 
permit is required, the grading of the banks of a currently serviceable 
ditch to gentler (shallower) slopes than its current or original 
configuration. Reshaping a drainage ditch so that it has shallower side 
slopes can help improve water quality by decreasing the velocity of 
water flowing through the ditch and by spreading out water flow over a 
greater area of soil surface. It should also provide more area for 
plants to become established and grow within the ditch. These changes 
are likely to help improve water quality by increasing water contact 
with vegetation and soil microbes, to facilitate the removal of 
nutrients and other chemical compounds through biogeochemical 
processes. Slower water flow rates through the ditch should also 
decrease erosion, also improving water quality.
    We are proposing to remove the prohibition against permanent 
sidecasting of excavated material into waters of the United States, 
where the excavated material results from the ditch reshaping activity. 
In cases where there are jurisdictional wetlands or other waters next 
to the ditch to be reshaped, this prohibition is likely to cause many 
landowners to maintain the ditch at its originally designed 
configuration to qualify for the exemption, since the 404(f)(1)(C) 
exemption allows discharges of dredged or fill material into waters of 
the United States resulting from ditch maintenance activities.
    Since one of the conditions of this NWP states that the centerline 
of the ditch must remain in approximately the same place, we do not 
believe that it is necessary to state that this NWP does not authorize 
stream relocation projects.
    NWP 42. Recreational Facilities. (Cat 2) We are proposing to 
simplify this NWP by removing the term which limits its use to those 
recreational facilities that are integrated into the existing landscape 
and do not substantially change pre-construction grades or deviate from 
natural landscape contours. That particular term is problematic in many 
areas of the United States, especially those regions where the project 
area for a proposed recreational facility is predominantly uplands. The 
construction of recreational facilities that result in minimal 
individual and cumulative adverse effects on the aquatic environment 
should be authorized by this NWP, regardless of the amount of changes 
to pre-construction grades or natural landscape contours in areas not 
subject to regulatory jurisdiction under Section 404 of the Clean Water 
Act.
    We are also proposing to modify this NWP to require PCNs for all 
activities, so that district engineers will be able to review proposed 
recreational facilities to ensure that they result in minimal 
individual and cumulative adverse effects on the aquatic environment.
    We are also proposing to remove the text requiring submission of a 
compensatory mitigation proposal with a PCN, since GC 20 addresses 
compensatory mitigation requirements for all NWPs. We are proposing to 
remove the text that explicitly requires water quality management 
measures, since such measures may be required by district engineers for 
any NWP on a case-by-case basis in accordance with the ``water 
quality'' general condition (GC 21).
    We are proposing to modify the 300 linear foot limit for the loss 
of stream bed, by applying that limit to ephemeral streams. We are also 
proposing to allow district engineers to waive the 300 linear foot 
limit, if the stream bed is intermittent or ephemeral and the 
individual and cumulative adverse effects on the aquatic environment 
are minimal. These waivers must be issued in writing by the district 
engineer.
    This NWP can be used to authorize the construction of ski areas and 
golf

[[Page 56273]]

courses, as long as those activities result in minimal adverse 
environmental effects and are in the public interest. We are also 
proposing to expand this NWP to authorize playing fields and basketball 
and tennis courts. The condition prohibiting the use of this NWP to 
authorize hotels, restaurants, stadiums, racetracks, arenas, and 
similar facilities would be retained. District engineers will evaluate 
PCNs to determine if proposed recreational facilities are authorized by 
this NWP.
    In response to a PCN, the district engineer may impose special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, allows for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.
    NWP 43. Stormwater Management Facilities. (Cat 2) We are proposing 
to modify this NWP to require PCNs for the construction or expansion of 
stormwater management facilities, but not for maintenance activities. 
District engineers will review those PCNs to ensure that proposed 
activities result in minimal individual and cumulative adverse effects 
on the aquatic environment and other public interest review factors, 
including floodplain values.
    We are proposing to modify the 300 linear foot limit for the loss 
of stream bed by applying that limit to ephemeral streams. We are also 
proposing to allow district engineers to waive the 300 linear foot 
limit if the stream bed is intermittent or ephemeral and the filling 
and/or excavation of that stream bed will result in minimal individual 
and cumulative adverse effects on the aquatic environment. These 
waivers must be issued in writing by the district engineer.
    In addition, we are proposing to remove the requirement for 
prospective permittees to submit maintenance plans, since the NWP 
limits maintenance activities to restoring the stormwater management 
facility to its original design capacity. We are also proposing to 
remove the requirement to submit compensatory mitigation proposals with 
PCNs, since mitigation requirements are addressed by GC 20. General 
condition 20 requires permittees to avoid and minimize impacts to 
waters of the United States on the project site to the maximum extent 
practicable, so we are proposing to remove the requirement for 
submitting an avoidance and minimization statement with the PCN. 
District engineers will review PCNs to determine if avoidance and 
minimization has been accomplished to the maximum extent practicable.
    We are also proposing to remove the text requiring compliance with 
the ``management of water flows'' general condition (GC 9), since that 
general condition generally applies, as appropriate, to all NWPs. We 
are proposing to remove the requirement for maintenance excavation to 
be conducted in accordance with an approved maintenance plan, since the 
maintenance of an existing stormwater management facility is limited to 
its original design capacity and therefore it is likely to result in 
minimal adverse effects to the aquatic environment.
    NWP 44. Mining Activities. (Cat 2) We are proposing to simplify 
this NWP, and modify it to authorize all types of mining activities 
except for coal mining. Surface coal mining activities may be 
authorized by NWP 21. Other types of coal mining activities may be 
authorized by the proposed new NWP E (Coal Remining Activities) or NWP 
F (Underground Coal Mining Activities). This NWP would continue to 
authorize aggregate mining and hard rock/mineral mining activities. We 
are proposing to retain the \1/2\ acre limit for this NWP. Pre-
construction notifications are required for all activities authorized 
by this NWP, so we do not believe that it is necessary to partition the 
types of waters where certain types of mining activities can occur. 
District engineers will review PCNs to ensure that proposed mining 
activities will result in minimal adverse effects on the aquatic 
environment, individually and cumulatively, and will exercise 
discretionary authority if the adverse effects are more than minimal. 
This NWP authorizes only discharges of dredged or fill material into 
non-tidal waters of the United States, and does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters.
    The PCN must include a copy of the reclamation plan, if reclamation 
is required by other statutes. We are proposing to remove the 
requirement to submit an avoidance and minimization statement, because 
the ``mitigation'' general condition (GC 20) requires avoidance and 
minimization of adverse effects to waters of the United States to the 
maximum extent practicable on the project site. We are proposing to 
remove the references to the general conditions relating to the 
``shellfish beds'' and ``spawning areas'' general conditions (GC 6 and 
GC 3), since those conditions apply, to the extent appropriate, to all 
NWPs. We believe that the terms requiring measures to prevent increases 
in stream gradient and water velocities, and minimizing turbidity, 
should be removed and the prevention or reduction of such impacts is 
more appropriately addressed through the NWP general conditions (e.g., 
GCs 3, 9, and 12), as well as the site-specific review and any case-
specific special conditions added to NWP authorizations by district 
engineers. If the district engineer reviews a PCN and determines that 
the proposed mining activity will result in more than minimal adverse 
effects to stream gradient, water velocities, and turbidity, he will 
exercise discretionary authority and require an individual permit for 
the activity.
    We are also proposing to remove the references to the ``water 
quality'' general condition (GC 21) and the ``management of water 
flows'' general condition (GC 9), since those general conditions apply, 
as appropriate, to all NWPs. We believe that restrictions for hard 
rock/mineral mining, including beneficiation and mineral processing, 
are more appropriately addressed through special conditions to NWP 
verifications, or by regional conditions imposed by division engineers.
    In response to a PCN, the district engineer may impose special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, allows for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.

Discussion of Proposed New Nationwide Permits

    NWP A. Emergency Repair Activities. We are proposing to remove 
paragraph (iii) from the current NWP 3 and issue a new NWP to authorize 
emergency repair activities. This will simplify NWP 3, and limit that 
NWP to routine maintenance activities. This proposed NWP requires PCNs 
for all activities. The PCN must be submitted within 12 months of the 
date of the damage. This 12 month period is intended to establish that 
the damage or loss of upland occurred in the recent past, and that the 
proposed activity is not intended to reclaim lost lands due to gradual 
erosion processes. The work must be completed within two years of 
submitting the PCN.
    The proposed NWP also authorizes bank stabilization activities to 
protect the restored uplands, as long as the bank stabilization 
activity does not extend beyond the ordinary high water mark

[[Page 56274]]

(OHWM) that existed before the damaging event occurred. Bank 
stabilization activities that extend beyond the pre-event OHWM may be 
authorized by NWP 13, a regional general permit, or an individual 
permit.
    We are proposing to replace the 50 cubic yard limit for minor 
dredging to remove obstructions from the adjacent waterbody with a 
condition limiting minor dredging to the minimum necessary to restore 
bottom contours of the waterbody to their pre-event state. District 
engineers will review PCNs involving minor dredging for emergency 
repair activities, to ensure that the authorized work will result in 
minimal adverse environmental effects. We are also proposing to add a 
condition which states that project proponents may be required to 
obtain separate DA authorization, if temporary structures or discharges 
are necessary to conduct the rehabilitation or repair activity. 
Separate DA authorization would be required for temporary structures 
installed in navigable waters of the United States and/or temporary 
discharges of dredged or fill material into waters of the United States 
that are necessary to conduct emergency repair activities. The separate 
DA authorization may be provided by NWP 33, a regional general permit, 
or an individual permit.
    In the ``Note'' at the end of this NWP, we are proposing to modify 
text taken from paragraph (iii) of NWP 3 to clarify that restoring 
uplands up to the OHWM in non-tidal waters or the high tide line in 
tidal waters after a storm, flood, or other discrete event does not 
require a section 404 permit. If discharges of dredged or fill material 
to restore uplands lost as a result of a discrete event occur landward 
of the OHWM or high tide line, and there are no jurisdictional waters 
or wetlands landward of the OHWM or high tide line, a section 404 
permit is not required because there would be no discharge of dredged 
or fill material into waters of the United States. In response to a 
PCN, the district engineer will determine, on a case-by-case basis, the 
location of the OHWM and the high tide line. In the ``Note,'' we are 
also proposing to include a reference to 33 CFR 328.5, which addresses 
changes in limits to waters of the United States.
    In response to a PCN, the district engineer can exercise 
discretionary authority and require an individual permit if the 
proposed activity will result in more than minimal adverse effects on 
the aquatic environment, individually and cumulatively.
    NWP B. Discharges into Ditches and Canals. We are proposing a new 
NWP to authorize discharges of dredged or fill material into certain 
types of ditches and canals that are determined to be waters of the 
United States. The proposed NWP will allow a landowner to return his or 
her land to its prior condition, but only in those cases where the 
ditches or canals meet all three criteria specified in the NWP. To 
qualify for this NWP, those ditches and canals must be: (1) Constructed 
in uplands, (2) receive water from another water of the United States, 
and (3) divert water to another water of the United States. These three 
criteria will limit the use of this NWP to those ditches and canals 
that generally provide few aquatic resource functions. This proposed 
NWP does not authorize discharges of dredged or fill material into 
ditches or canals that were constructed in waters of the United States, 
such as streams.
    We are proposing a one acre limit for this NWP. We believe the one 
acre limit will authorize those activities that have minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Division engineers can regionally condition this NWP to lower the 
acreage limit or otherwise limit its use. We are proposing to require a 
PCN if the dredged or fill material will be discharged into more than 
500 linear feet of ditch or canal. This proposed NWP is limited to 
activities that only require section 404 authorization. An individual 
permit, regional general permit, or another NWP would be needed to 
authorize discharges of dredged or fill material into ditches and 
canals that are determined to be navigable waters of the United States 
under section 10 jurisdiction.
    We are seeking comments on this proposed new NWP, including its 
terms and conditions, such as the proposed one acre limit.
    NWP C. Pipeline Safety Program Designated Time Sensitive 
Inspections and Repairs. We are proposing a new NWP to authorize the 
inspection, repair, rehabilitation, or replacement of any currently 
serviceable structure or fill for pipelines that are determined to be 
time-sensitive in accordance with the Pipeline and Hazardous Materials 
Safety Administration's Pipeline Safety Program (PHP), including its 
criteria at 49 CFR parts 192 and 195. This NWP would authorize time-
sensitive pipeline inspection, repair, rehabilitation, or replacement 
activities in all waters of the United States, including navigable 
waters.
    The proposed NWP would significantly improve a participating 
pipeline operator's ability to complete inspection and repair 
activities, and reduce environmental impacts due to pipeline ruptures. 
An Interagency Committee (IAC) was convened to implement Section 16 of 
the Pipeline Safety Improvement Act of 2002 (see 49 U.S.C. 60133). The 
proposed NWP will help satisfy the requirements of this act. The 
environmental compliance and enforcement programs of the agencies 
participating in the interagency committee would also help ensure 
compliance with environmental statutes such as the Endangered Species 
Act and Section 106 of the National Historic Preservation Act.
    Although many of these activities could be authorized by NWPs 3 or 
12, we are proposing to issue this NWP so that a time-sensitive 
inspection and/or repair that meets PHP criteria can proceed without 
submitting a PCN to the district engineer. To ensure that this NWP 
would allow these inspections and repairs to proceed in a timely 
manner, division engineers are not authorized to regionally condition 
this NWP. This proposed NWP requires project proponents to: (1) 
Participate in PHP's early notification program, (2) utilize the 
Pipeline Repair and Environmental Guidance System (PREGS), (3) follow 
the agreed upon Recommended Best Management Practices (RMBPs), and (4) 
submit post-construction reports within 7 days of completing the work 
via PREGS. District engineers can monitor the pipeline inspection and/
or repair activity and the use of this NWP through the post-
construction reporting in PREGS to ensure that the NWP authorizes 
activities that have minimal individual and cumulative adverse effects 
on the aquatic environment. Suspension or revocation of this NWP may 
occur only if the division engineer has formally determined, in 
accordance with the procedures at 33 CFR 330.5(c), that the NWP would 
result in more than minimal adverse environmental effects, either 
individually or cumulatively, within a particular district, watershed, 
or other geographic region. District engineers must follow the 
procedures at 33 CFR 330.5(d) to suspend or revoke a case-specific 
authorization under this NWP.
    The Pipeline and Hazardous Materials Safety Administration and the 
IAC developed PREGS. Participating pipeline operators and agencies have 
access to PREGS. This system will provide early notification to 
participating agencies for upcoming pipeline inspection and repair 
activities.
    The RBMPs have been developed through the IAC to address habitat 
and resource issues at the national level. These RBMPs apply to 
pipeline inspection and repair activities, as well as post-activity 
remediation actions. The RMBPs are available on PREGS.

[[Page 56275]]

Pipeline operators are expected to use the RBMPs while conducting 
inspection and repair activities.
    Activities authorized by this NWP must comply with the ``endangered 
species'' general condition (GC 17) and the ``historic properties'' 
general condition (GC 18). If a proposed pipeline inspection and/or 
repair activity may affect endangered or threatened species or critical 
habitat, section 7 consultation is required. Activities that may affect 
historic properties require consultation under Section 106 of the 
National Historic Preservation Act. We are coordinating with PHP to 
determine who will be the lead federal agency for ESA and section 106 
consultation.
    NWP D. Commercial Shellfish Aquaculture Activities. We are 
proposing a new NWP to authorize continued operation of existing 
commercial shellfish aquaculture activities in navigable waters of the 
United States. This NWP would support the U.S. Department of Commerce's 
Aquaculture Policy, which is intended to ``assist in the development of 
a highly competitive, sustainable aquaculture industry in the United 
States that will meet growing consumer demand for aquatic foods and 
products that are of high quality, safe, competitively priced and are 
produced in an environmentally responsible manner with maximum 
opportunity for profitability in all sectors of the industry.'' The 
proposed new NWP also supports the National Aquaculture Act of 1980, as 
amended (16 U.S.C. 2801 et seq.), which declared that aquaculture 
development is in the national interest, and included requirements for 
Federal agencies to address barriers to aquaculture development.
    This NWP authorizes structures or work in navigable waters of the 
United States, as well as discharges of dredged or fill material into 
all waters of the United States. Examples of commercial shellfish 
species for which this NWP could be used to authorize aquaculture 
activities include oysters, clams, geoducks, mussels, and scallops. The 
proposed NWP does not authorize commercial aquaculture activities for 
crustaceans or finfish.
    This NWP does not authorize the expansion of existing commercial 
aquaculture activities or facilities, however we are soliciting comment 
on this limitation. We are also soliciting comments on whether to 
impose a limit on the quantity of dredged or fill material that could 
be discharged into navigable waters, on the acreage of the facility as 
a whole or of submerged aquatic vegetation, and/or on the types of 
activities authorized. For example, discharges of dredged or fill 
material may be necessary to prepare a suitable substrate for shellfish 
seeding. Should this activity be authorized by the NWP?
    There are different types of shellfish seed that can be used to 
increase shellfish production. Shellfish seed may consist of immature 
individual shellfish, an individual shellfish attached to a shell or 
shell fragment (i.e., spat on shell) and shellfish shells or shell 
fragments placed into waters to provide a substrate for attachment by 
free swimming shellfish larvae (i.e., natural catch).
    To ensure that activities authorized by this NWP result in minimal 
individual and cumulative adverse effects on the aquatic environment, 
we are proposing to require pre-construction notification if: (1) The 
project area is greater than 25 acres; (2) more than 10 acres of the 
project area is occupied by submerged aquatic vegetation; (3) the 
permittee intends to relocate existing operations into portions of the 
project area not previously used for aquaculture activities; or (4) 
dredge harvesting is conducted in areas inhabited by submerged aquatic 
vegetation. For the purposes of this NWP, we are proposing to define 
the project area as the area of navigable waters of the United States 
occupied by the aquaculture operation. In most cases, the project area 
will consist of a site for which the operator has obtained a permit, 
license, or lease from a state or local agency specifically authorizing 
aquaculture activities in that particular location. The project area 
may include areas in which there has been no previous aquaculture 
activity and/or areas that periodically are allowed to lie fallow as 
part of the normal operation of the facility. Relocation of existing 
operations into portions of the project area not previously used for 
aquaculture activities will require a pre-construction notification. 
Because shellfish require healthy ecosystems for their growth and 
productivity, in addition to providing the aquatic ecosystem services 
of improved water quality and increased food production, we believe 
that there is generally a net overall increase in aquatic resource 
functions in estuaries or bays where shellfish are produced. We are 
requesting comments on the potential beneficial and adverse effects 
that commercial shellfish aquaculture activities have on the aquatic 
environment. We are also seeking comment on this proposed PCN 
threshold, including the appropriateness of attempting to quantify 
these aquatic operations in terms of acres, ecosystem health, shellfish 
productivity, or some other threshold to ensure minimal adverse 
effects.
    Commercial shellfish aquaculture activities often take place in, 
and are found to co-exist with, intertidal areas that are occupied by 
submerged aquatic vegetation (i.e., vegetated shallows). To minimize 
adverse effects to this type of aquatic habitat, we are proposing to 
require PCNs if more than 10 acres of the project area is occupied by 
submerged aquatic vegetation.
    This proposed NWP does not authorize the cultivation of new 
species. In other words, the NWP does not authorize aquaculture 
activities for those species that were not previously cultivated by the 
existing commercial shellfish aquaculture activity. The commercial 
production of a shellfish species that has not been previously 
commercially produced by the existing facility may be authorized by an 
individual permit or a regional general permit.
    We are proposing that division engineers complete reviews of 
commercial shellfish aquaculture activities in the estuaries or bays in 
their areas on a recurring basis, in coordination with interested 
agency and shellfish producers as appropriate. These reviews would 
occur at least every 5 years in conjunction with the NWP reissuance 
cycle, but may occur more frequently.
    This NWP is limited to work associated with the continued operation 
of existing commercial shellfish projects, many of which have been in 
place for hundreds of years. We feel the potential for adverse 
environmental impacts from such existing operations is minimal, and we 
support the objectives of the U.S. Department of Commerce's Aquaculture 
Policy to increase shellfish productivity in this country. Although new 
projects are not authorized initially by this NWP, once authorized by 
another form of Department of the Army permit, such as a regional 
general permit or an individual permit, the commercial shellfish 
activities may continue in accordance with the terms and conditions of 
the issued permit and/or this NWP until expired. We are committed to 
conducting reviews of commercial shellfish activities to validate, 
collect data, and ensure that the Corps is authorizing only those 
activities that result in minimal individual or cumulative adverse 
effects on the aquatic environment with this NWP or other general 
permits for aquaculture activities. These reviews will begin as soon as 
possible (but no later than 2007) in all coastal divisions, and will 
involve Federal, State and local

[[Page 56276]]

agencies, stakeholders and the general public to help the Corps develop 
regional and special conditions to mitigate impacts to the aquatic 
environment or other aspects of the public interest which may result 
from commercial shellfish aquaculture activities.
    This NWP authorizes the continued operation of existing commercial 
shellfish aquaculture activities. Those activities may have been 
previously authorized by another form of DA authorization. The 
construction period for a DA permit is the period of time where the 
permittee is authorized to conduct work in navigable waters of the 
United States and/or discharge dredged or fill material into waters of 
the United States. Once the DA permit expires, further authorization is 
not required to maintain the structures or fills, but if additional 
work in navigable waters or discharges of dredged or fill material in 
jurisdictional waters are necessary for the continued operation of 
those activities, then another DA permit is required. The proposed NWP 
provides the DA authorization for the continued operation of previously 
authorized commercial shellfish aquaculture activities. For example, 
the continued operation of an aquaculture activity may involve removing 
and replacing structures in navigable waters of the United States on a 
recurring basis.
    New commercial shellfish aquaculture activities or the substantial 
modification (e.g., the culture of different species) of existing 
commercial shellfish aquaculture activities in waters of the United 
States may be authorized by individual permits or regional general 
permits.
    NWP E. Coal Remining Activities. We are proposing this new NWP to 
authorize the restoration of mine sites throughout the United States 
that are causing physical and/or chemical impacts to waters of the 
United States. Many of these sites were abandoned or closed prior to 
the 1977 Surface Mining Control and Reclamation Act (SMRCA) and are 
currently on state lists for reclamation, although funding is limited. 
Other sites could include bond forfeitures on active mine sites and 
``no cost'' abandoned mine land projects under SMCRA (e.g., government 
sponsored construction projects). In some cases, due to changes in 
technology, additional coal may be excavated as part of the reclamation 
process. In other cases, these sites may be combined with adjacent 
unmined areas to put together a project that is economically viable. 
The net result of these larger projects is that sources of pollution to 
downstream waters, including acid mine drainage and sources of 
sediment, will be eliminated or substantially diminished when the site 
is reclaimed. The integrated permit processing procedure and its 
potential applicability to this NWP is addressed above in the preamble 
discussion for NWP 21.
    As a result of the reclamation activity on these remined areas, 
local water quality would be improved. Reclamation activities may also 
involve the construction of emergent wetlands to help improve the 
quality of water from mines. Net increases in aquatic functions may be 
determined through available assessment methods, including functional 
assessments. Assessments may be used to compare ecosystem functions and 
site conditions that existed prior to remining to the ecosystem 
functions and site conditions that are predicted to be in place at the 
site after reclamation has been completed. Reclamation activities may 
result in the establishment of permanent structures or fills, to 
sustain ecological functions at the site. Such permanent structures or 
fills may include treatment wetlands, permanent water diversion 
structures, and permanent impoundments. Permanent roads may also be 
constructed, to facilitate site access and maintenance of the reclaimed 
site.
    This NWP authorizes discharges of dredged or fill material into 
non-tidal waters of the United States. This NWP may be used on sites 
where the ratio of previously mined areas to new coal removal areas is 
greater than 60 percent, therefore, we are proposing to allow up to 40 
percent of the mine site to include unmined areas. In addition, to 
qualify for authorization under this NWP, we are requiring that the 
applicant clearly demonstrate that the overall project, including the 
reclamation activity and any new mining, will result in a net increase 
in aquatic resource functions. Such increases in aquatic resource 
functions will be identified through local functional assessment 
methods that have been approved for use by the Corps district in that 
region.
    In response to a PCN, the district engineer may impose special 
conditions on a case-by-case basis to ensure that the adverse effects 
on the aquatic environment are minimal or exercise discretionary 
authority to require an individual permit for the work. The issuance of 
this NWP, as with any NWP, provides for the use of discretionary 
authority when valuable or unique aquatic areas may be affected by 
these activities.
    NWP F. Underground Coal Mining Activities. We are proposing a new 
NWP to authorize discharges of dredged or fill material into non-tidal 
waters of the United States resulting from underground coal mining 
activities. This type of mining involves excavating rock and soil on 
the surface to expose the coal seam and providing access for people, 
equipment, and ventilation facilities, a process referred to as 
``facing up.'' In steep terrain, excavated material from these ``face-
up'' areas may result in small fills if the excavation is limited to 
providing coal seam access or larger fills if facilities such as fill 
for coal processing plants and coal processing waste areas are needed. 
Underground mining may also create fills from excavating non-coal waste 
rock underground. The mine operator may have to place fill in small 
streams adjacent to the preparation facility in order to dispose of 
coal waste from the cleaning and preparation of coal. Similarly, the 
operator of a preparation facility may need an impoundment in an 
adjacent stream valley for withdrawal of cleaning process water. The 
integrated permit processing procedure and its potential applicability 
to this NWP is addressed in the preamble discussion for NWP 21.
    Examples of activities that may be authorized by this NWP include, 
but are not limited to, treatment facilities for controlling water 
pollution during mining and reclamation (e.g., acid mine drainage 
impoundments, sedimentation ponds), access and haul roads, diversion 
ditches, support facilities, processing areas, and mined waste 
impoundments or embankments. This NWP would also authorize permanent 
structures or fills that would remain after reclamation activities have 
been completed (e.g., permanent diversion structures to minimize 
erosion and prevent water from contacting toxin-producing deposits).
    The proposed NWP has a \1/2\ acre limit, and is limited to 
discharges of dredged or fill into non-tidal waters of the United 
States. The NWP does not authorize discharges of dredged or fill 
material into non-tidal wetlands adjacent to tidal waters.
    The proposed NWP does not authorize coal preparation and processing 
activities outside of the mine site; those activities may be authorized 
by NWP 21. Pre-construction notification is required for all activities 
authorized by this NWP, and if reclamation is required by other 
statutes, then a copy of the reclamation plan must be submitted with 
the pre-construction notification.

[[Page 56277]]

Discussion of Proposed Modifications to Nationwide Permit General 
Conditions

    We are proposing to add a ``Note'' to the list of NWP general 
conditions, to ensure that prospective permittees are aware that they 
must comply with the general conditions for the NWPs, as well as any 
regional conditions imposed by division engineers and special 
conditions added by district engineers. The proposed note encourages 
prospective permittees to contact the appropriate Corps district office 
to determine if regional conditions have been added to an NWP. The 
proposed note also encourages prospective permittees to contact the 
appropriate Corps district office to determine the status of water 
quality certification and/or Coastal Zone Management Act consistency 
for any NWP they wish to use.
    We are also proposing to place the general conditions in a 
different order, to make them easier to read and to facilitate 
compliance. The general conditions relating to various environmental 
concerns and public interest review factors are listed first, and are 
followed by the general conditions relating to administrative 
requirements.
    GC 1. Navigation. (Remaining as general condition 1.) We are 
proposing to modify this general condition by adding two provisions. 
First, we are proposing to add paragraph (b), which requires permittees 
to install any safety lights and signals required by the U.S. Coast 
Guard.
    Second, we are proposing to add paragraph (c), which is intended to 
address future and current conflicts between Corps water resources 
development projects and structures or other work in navigable waters 
authorized by Corps permits. There may be cases where activities 
authorized by DA permits interfere with navigation or any existing or 
future operation of the United States, and need to be removed. In May 
2000, we issued guidance requiring district engineers to add this 
language as a general condition to all DA permits, including nationwide 
permit and regional general permit verifications, that authorize 
activities under Section 10 of the Rivers and Harbors Act of 1899.
    Adding paragraph (c) to this general condition will help ensure 
that permittees are aware that they may need to remove authorized 
structures or work if the structures or work interfere with free 
navigation in navigable waters of the United States. This provision 
applies to all NWPs that authorize section 10 activities, including 
those that do not require pre-construction notification.
    GC 2. Aquatic Life Movements. (Formerly general condition 4.) We 
are proposing to modify the phrase ``necessary life cycle movements,'' 
by adding ``when known'' following it, to reflect the fact that 
necessary life cycle movements are not always well understood for the 
wide variety of indigenous aquatic species inhabiting waters of the 
United States. This condition still prohibits the substantial 
disruption of known life cycle movements of aquatic life.
    GC 3. Spawning Areas. (Formerly general condition 20.) To simplify 
this general condition, we are proposing to remove the phrase 
``including structures or work in navigable waters of the U.S. or 
discharges of dredged or fill material'' because it merely lists the 
general types of activities authorized by NWP under sections 10 and 
404.
    GC 4. Migratory Bird Breeding Areas. (Formerly general condition 
23.) We are modifying this general condition to cover migratory birds 
generally (not just waterfowl) that use aquatic habitat as breeding 
areas. To simplify this general condition, we are proposing to remove 
the phrase ``including structures or work in navigable waters of the 
U.S. or discharges of dredged or fill material'' because it merely 
lists the general types of activities authorized by NWP under sections 
10 and 404.
    GC 5. Shellfish Beds. (Formerly general condition 17.) To simplify 
this general condition, we are proposing to remove the phrase 
``including structures or work in navigable waters of the U.S. or 
discharges of dredged or fill material'' because it merely lists the 
general types of activities authorized by NWP under sections 10 and 
404. We are also adding a reference to new NWP D, which explicitly 
authorizes discharges related to existing commercial shellfish 
aquaculture activities, which will generally include shellfish beds.
    GC 6. Suitable Material. (Formerly general condition 18.) To 
simplify this general condition, we are proposing to remove the phrase 
``including structures or work in navigable waters of the U.S. or 
discharges of dredged or fill material'' because it merely lists the 
general types of activities authorized by NWP under sections 10 and 
404.
    GC 7. Water Supply Intakes. (Formerly general condition 16.) We are 
proposing to add the phrase ``or improvement'' after the word 
``repair'' since it may be necessary for water authorities to modify 
their intake structures to comply with new regulations or other 
reasons. To simplify this general condition, we are proposing to remove 
the phrase ``including structures or work in navigable waters of the 
U.S. or discharges of dredged or fill material'' because it merely 
lists the general types of activities authorized by NWP under sections 
10 and 404.
    GC 8. Adverse Effects from Impoundments. (Formerly general 
condition 22.) We are proposing to remove the last sentence of this 
general condition, because it merely lists the general types of 
activities authorized by NWP under sections 10 and 404.
    GC 9. Management of Water Flows. (Formerly general condition 21.) 
We are proposing to simplify this general condition, to require 
permittees to maintain the pre-construction course, condition, 
capacity, and location of open waters to the maximum extent 
practicable. Exceptions to this requirement may be made if the primary 
purpose of the NWP activity is to impound water or if the activity 
benefits the aquatic environment. For example, stream restoration 
activities authorized by NWP 27 may alter the pre-construction course, 
condition, capacity, and location of streams, while providing important 
aquatic resource functions and services.
    GC 10. Fills within 100-Year Floodplains. (Formerly general 
condition 26.) We are proposing to modify this general condition to 
simply require permittees to comply with applicable state or local 
floodplain management requirements that have been approved by the 
Federal Emergency Management Agency (FEMA). As discussed below, instead 
of the prohibitions imposed by the versions of this general condition 
that were present in the 2000 and 2002 nationwide permits, we are 
proposing to address impacts to 100-year floodplains through the case-
by-case review that occurs through the PCN process.
    This general condition was initially adopted in 2000 and modified 
in 2002. In the 2002 NWPs, this general condition prohibited the use of 
NWPs 39, 40, 42, 43, and 44 to authorize discharges of dredged or fill 
material in waters of the United States resulting in permanent above-
grade fills within mapped 100-year floodplains located below 
headwaters. It also prohibited the use of NWPs 39, 40, 42, and 44 to 
authorize discharges of dredged or fill material in waters of the 
United States resulting in permanent above-grade fills within mapped 
floodways above headwaters.
    As noted in other sections of this preamble, we are proposing to 
require PCNs for all activities authorized by NWP 29 (the proposed 
modification of which includes residential development

[[Page 56278]]

activities authorized by the NWP 39 issued in 2002), as well as NWPs 
39, 40, 42, and 44. We are also proposing to require PCNs for NWP 43 
activities resulting in the construction or expansion of stormwater 
management facilities (only maintenance of existing facilities is 
exempted from the PCN requirement). Thus, any activity that was 
previously prohibited in the 100-year floodplain by this general 
condition will now require a PCN.
    During the PCN review process, district engineers consider adverse 
impacts to the aquatic environment, as well as other public interest 
review factors, including floodplain values and flood hazards (see 33 
CFR 330.1(e)(2)). If an NWP activity results in more than minimal 
adverse effects to the aquatic environment or any other public interest 
review factor, the district engineer will exercise discretionary 
authority and require an individual permit. Potential impacts to flood 
hazards and floodplain values that may be more than minimal can be 
assessed in greater depth during the individual permit review process. 
In such cases, the Corps will defer to the FEMA-approved state or local 
floodplain management requirements.
    Where there are regional concerns regarding development activities 
in 100-year floodplains involving discharges of dredged or fill 
material into waters of the United States, division engineers can 
regionally condition certain NWPs to restrict or prohibit use of those 
NWPs to authorize activities in those floodplains.
    One of the environmental benefits of the NWP program is that it 
provides incentives for project proponents to avoid and minimize 
impacts to the waters of the United States to qualify for an expedited 
NWP authorization instead of applying for individual permits, which 
generally require greater costs and time to obtain. Prohibiting the use 
of NWPs 39, 40, 42, 43, and 44 removes that incentive to reduce impacts 
to qualify for general permit authorization. If required to obtain 
individual permits, project proponents may propose larger activities 
with greater impacts to waters of the United States within 100-year 
floodplains.
    Modifying this general condition will increase government 
efficiency, by promoting conformity with other federal, state, and 
local programs. At the Federal level, the Federal Emergency Management 
Agency (FEMA) is the lead Federal agency for floodplain management. 
FEMA programs, such as the National Flood Insurance Program (NFIP) and 
other floodplain management activities, as well as State and local 
government land use planning and zoning efforts, allow floodplain 
development. The NFIP imposes construction standards and requirements 
for structures built in 100-year floodplains. Those standards and 
requirements must be met to qualify for flood insurance. State and 
local governments may impose more restrictive standards and 
requirements than the NFIP.
    To harmonize the NWP program with FEMA's floodplain management 
programs, we are proposing to revise this general condition. Adverse 
effects to public interest review factors, especially floodplain values 
and flood hazards, will be evaluated during the PCN review process for 
NWPs 29, 39, 40, 42, 43, and 44, as well as other NWPs, to the extent 
appropriate. Management of floodplain development is more appropriately 
achieved through state and local government land use planning, which 
can address impacts to both the aquatic and terrestrial components of 
100-year floodplains.
    GC 11. Equipment. (Formerly general condition 5.) We are proposing 
to add the phrase ``or mudflats'' to minimize soil disturbance in these 
special aquatic sites.
    GC 12. Soil Erosion and Sediment Controls. (Formerly general 
condition 3.) We are not proposing any changes to this general 
condition.
    GC 13. Removal of Temporary Fills. (Formerly general condition 24.) 
We are proposing to replace the phrase ``their preexisting elevation'' 
with ``pre-construction conditions'' to clarify that temporarily filled 
areas are to be restored to the condition they were in prior to 
construction.
    GC 14. Proper Maintenance. (Formerly general condition 2.) We are 
not proposing any changes to this general condition.
    GC 15. Wild and Scenic Rivers. (Formerly general condition 7.) We 
are not proposing any changes to this general condition.
    GC 16. Tribal Rights. (Formerly general condition 8.) We are not 
proposing any changes to this general condition.
    GC 17. Endangered Species. (Formerly general condition 11.) We are 
proposing to add a sentence to paragraph (a) of this general condition 
to state that no activity which may affect a listed species or critical 
habitat is authorized by NWP unless Section 7 consultation addressing 
the effects of the proposed activity has been completed. The district 
engineer is responsible for making the ``may effect'' determination.
    We are also proposing to modify this general condition by adding a 
provision that requires district engineers to notify prospective 
permittees within 45 days whether the proposed activity ``may affect'' 
or will have ``no effect'' to listed species and designated critical 
habitat. The proposed modification also states that applicants cannot 
begin proposed activities until: (1) They are notified by the Corps 
that those activities will result in ``no effect'' on listed species or 
critical habitat, or (2) Section 7 consultation has been completed (see 
33 CFR 330.4(f)(2)). The purpose of the proposed provision is to 
facilitate compliance with the Endangered Species Act and keep 
prospective permittees informed of the status of their pre-construction 
notifications.
    GC 18. Historic Properties. (Formerly general condition 12.) We are 
proposing to modify this general condition by adding a provision that 
requires district engineers to notify prospective permittees within 45 
days whether consultation under Section 106 of the National Historic 
Preservation Act is required. The purpose of the proposed provision is 
to facilitate section 106 compliance and keep prospective permittees 
informed of the status of their pre-construction notifications.
    We are also proposing to remove the reference to Appendix C to 33 
CFR part 325, where our regulations for the protection of historic 
properties are currently located. On April 25, 2005, we issued revised 
interim guidance for implementing Appendix C with the Advisory Council 
on Historic Preservation's revised regulations at 36 CFR part 800. We 
believe this general condition should have a more general reference to 
the Corps Regulatory Program's current procedures for section 106 
compliance, since we are using Appendix C, the revised interim 
guidance, and other guidance for section 106 compliance. We are in the 
process of revising regulatory program procedures for Section 106 
compliance.
    GC 19. Designated Critical Resource Waters. (Formerly general 
condition 25). This general condition is being simplified but not 
substantively changed. We are removing wild and scenic rivers and 
critical habitat for threatened or endangered species from the list of 
waters to which this general condition applies, because general 
conditions 15 and 17 already address these waters and the previous 
version of this general condition merely stated that these other 
general conditions must be complied with. District engineers will pay 
particular attention to critical resource waters in determining whether 
special permit conditions are needed, or whether discretionary 
authority to

[[Page 56279]]

require individual permits should be exercised.
    GC 20. Mitigation. (Formerly general condition 19.) As discussed 
above, we are proposing to modify several NWPs (e.g., NWPs 39, 40, and 
42) which may authorize discharges of dredged or fill material into 
wetlands, to require PCNs for all activities. For some wetland impacts 
authorized by NWPs, such as discharges of dredged or fill material 
resulting in the loss of small amounts of wetlands, it may not be 
practicable or appropriate to require compensatory mitigation for those 
losses. Therefore, we are establishing a threshold of \1/10\ acre for 
compensatory mitigation requirements. For projects that cause losses 
that exceed this threshold, compensatory mitigation will generally be 
required. For losses below this threshold, district engineers will 
review PCNs to determine if compensatory mitigation is necessary to 
ensure that the work authorized by NWP results in minimal adverse 
effects on the aquatic environment, individually and cumulatively. 
Permit applicants whose projects will exceed the \1/10\ acre loss 
threshold must include a description in their PCN of how they intend to 
satisfy the mitigation requirement.
    We are also proposing to remove the paragraph that defines 
practicable mitigation and provides examples of appropriate and 
practicable mitigation. As discussed elsewhere in this notice, we are 
proposing to add a definition of the term ``practicable'' to the 
``Definitions'' section of the NWPs, so we do not believe it is 
necessary to include the definition in this general condition.
    We are proposing to modify paragraph (d) of this general condition, 
to clarify that compensatory mitigation cannot be used to increase the 
acreage losses allowed by the acreage limits of the NWPs.
    For the reasons stated in the preamble discussion for the 
definition of ``riparian areas'' we are proposing to change the term 
``vegetated buffer'' to ``riparian areas.'' District engineers will 
make case-by-case determinations as to whether the establishment and 
maintenance of riparian areas is necessary, either in-lieu of or in 
addition to, wetlands compensatory mitigation, if both open waters and 
wetlands exist on the project site. Those determinations are based on 
consideration of watershed needs.
    We are also proposing to remove the paragraph stating that 
compensatory mitigation plans submitted with a PCN may be either 
conceptual or detailed, because that provision is in paragraph (e) of 
the ``pre-construction notification'' general condition (GC 27). 
Conditioning NWP verifications to require the submission of detailed 
compensatory mitigation plans prior to commencing work in waters of the 
United States is also addressed by the ``pre-construction 
notification'' general condition.
    We are also proposing to add a new paragraph to this general 
condition, stating that district engineers may require mitigation when 
certain functions and services of waters of the United States are 
permanently adversely affected by NWP activities. This paragraph was 
adapted from a term in the NWP 12 issued in 2002.
    GC 21. Water Quality. (Formerly general condition 9.) We are 
proposing to simplify this general condition by removing paragraph (b) 
and adding a sentence which states that the district engineer may 
require water quality management measures to ensure that the authorized 
activity does not result in more than minimal degradation of water 
quality.
    GC 22. Coastal Zone Management. (Formerly general condition 10.) We 
are proposing to modify this general condition to clarify that 
additional measures may be required to ensure that the authorized 
activity is consistent with State coastal zone management requirements.
    GC 23. Regional and Case-by-Case Conditions. (Formerly general 
condition 6.) We are proposing to add U.S. EPA to the list of agencies 
issuing water quality certifications, since that agency issues water 
quality certifications in areas where there are no state or tribal 
water quality standards. We are also proposing to add language 
clarifying that the state issues Coastal Zone Management Act 
consistency determinations.
    GC 24. Use of Multiple Nationwide Permits. (Formerly general 
condition 15.) The only modification we are proposing is to change the 
example from a parenthetical expression to a complete sentence.
    GC 25. Transfer of Nationwide Permit Verifications. We are 
proposing a new NWP general condition to address the transfer of NWP 
verifications when the project site is transferred from the project 
proponent who received the original NWP verification to a new project 
proponent. The new project proponent may have purchased the project 
site for the verified NWP activity.
    The NWP verification would be transferred to the new owner if the 
permittee submits a letter to the appropriate Corps district office, 
and the transferee signs the statement provided in this general 
condition. The district office would then validate the transfer by 
sending a confirmation letter to the new permittee.
    GC 26. Compliance Certification (Formerly general condition 14.) We 
are proposing only minor grammatical changes to this general condition.
    GC 27. Pre-construction Notification. (Formerly general condition 
13.) We are proposing to simplify this general condition by deleting 
text that is redundant with the terms of specific NWPs. As part of our 
efforts to make the NWPs easier to understand, if there is information 
required to be submitted with a PCN that is only applicable to a 
particular NWP, those requirements are indicated in the 
``Notification'' paragraph of that NWP.
    We are proposing to add a sentence to paragraph (a)(3) of this 
general condition, to clarify that the permittee cannot begin the NWP 
activity until consultations required by Section 7 of the Endangered 
Species Act (ESA) and/or Section 106 of the National Historic 
Preservation Act (NHPA) are completed. The NWP regulations state that 
if the prospective permittee notifies the district engineer that 
Federally-listed endangered or threatened species or critical habitat 
might be affected or are in the vicinity of the project, he or she 
cannot begin work until notified by the district engineer that the 
requirements of the ESA have been satisfied (see 33 CFR 330.5(f)(2)). 
There is a similar provision for compliance with Section 106 of the 
NHPA at 33 CFR 330.5(g)(2).
    We are proposing to modify paragraph (b)(3), which lists the 
required contents of pre-construction notifications, by deleting the 
word ``brief'' and clarifying that PCNs must include descriptions of 
proposed NWP activities that are sufficiently detailed for the district 
engineer to determine that any adverse impacts to the aquatic 
environment are minimal, both individually and cumulatively, and to 
develop any special conditions, including compensatory mitigation, that 
may be needed to ensure that this requirement is satisfied. We believe 
that providing more detailed descriptions of proposed NWP activities 
will facilitate reviews of PCNs.
    In paragraph (b)(4), we are also proposing to require that PCNs 
include delineations of special aquatic sites and other waters of the 
United States on the project site. We believe that more complete 
delineations will help expedite reviews of PCNs, by indicating clearly 
the proposed impacts to waters of the United States. We are also 
proposing to modify this paragraph to clarify that there may be 
extended delays if the permittee asks the Corps to

[[Page 56280]]

conduct the delineation and the project site is large or contains many 
wetland areas.
    In paragraph (b)(5), we are proposing to add a requirement for the 
prospective permittee to submit a statement describing how the 
mitigation requirement will be satisfied for those activities resulting 
in the loss of greater than \1/10\ acre of wetlands.
    We are proposing to add a provision to paragraph (d) to clarify the 
agency coordination process for NWP 37 PCNs. This provision states that 
emergency watershed protection and rehabilitation activities can 
proceed immediately, and a district engineer will consider comments 
received in response to agency coordination of the PCN (i.e., for NWP 
37 activities resulting in the loss of greater than \1/2\ acre of 
waters of the United States) when determining if the case-specific NWP 
37 authorization should be modified, suspended, or revoked.
    In addition, we are proposing to drop one NWP general condition.
    GC 27. Construction Period. This general condition was first 
adopted in 2002. During the implementation of the 2002 NWPs, questions 
arose that have required us to revisit this general condition. Section 
404(e)(2) of the Clean Water Act places a five-year limit on general 
permits issued under section 404. General condition 27 allowed a 
district engineer to place any completion date on an NWP verification, 
based on the amount of time a project proponent estimated would be 
necessary to finish constructing the NWP activity and consideration of 
the public interest. This general condition did not specify any limits 
to these completion dates, in effect providing the district engineer 
with the authority to state that the NWP activity was authorized for 
any period of time.
    The NWP regulations contain a provision that allows permittees to 
continue work for one year in reliance on an NWP authorization, if that 
NWP has expired or been modified or revoked, as long as the activity 
was under construction or under contract to commence construction (see 
33 CFR 330.6(b)). If that work cannot be completed within that one-year 
time period, then the permittee would have to obtain another DA 
authorization. We believe this provision is sufficient to address the 
concern with projects that may not be completed before an NWP expires.
    Proponents of NWP activities that will require substantial amounts 
of time to complete (greater than one year beyond the expiration of 
currently applicable NWPs) should consider whether it would be more 
advantageous to pursue an individual permit authorization. There is 
greater flexibility in construction periods that can be authorized by 
individual permits. An individual permit authorization can also be 
extended, as long as the district engineer determines that the time 
extension would be consistent with applicable regulations and would not 
be contrary to the public interest.

Discussion of Proposed Modifications to Existing Nationwide Permit 
Definitions

    We are proposing changes to some of the NWP definitions. If a 
definition is not discussed below, we are not proposing any substantive 
changes to that definition.
    Best Management Practices. We are proposing to modify this 
definition by removing the last sentence, since it does not help define 
this term. Instead, this sentence describes a potential consequence of 
implementing best management practices.
    Compensatory Mitigation. We are proposing to modify this definition 
by removing the phrase ``For the purposes of Section 10/404, 
compensatory mitigation is'' because the definitions in this section 
apply only to the NWP program. Therefore, it is not necessary to refer 
to section 10 or section 404. We are also proposing to replace 
``creation'' with ``establishment (creation)'' to be consistent with 
the wetland project types described in Regulatory Guidance Letter 02-
02.
    Creation. We are proposing to remove this term, and use the 
definition of ``establishment (creation)'' in its place.
    Currently serviceable. We are proposing to move this definition 
from NWP 3 to the ``Definitions'' section, since this definition 
applies to more than one NWP (i.e., NWPs 3 and 41, as well as proposed 
new NWP C).
    Enhancement. We are proposing to modify this definition to be 
consistent with the wetland project type described in Regulatory 
Guidance Letter 02-02 and the definition in the Council on 
Environmental Quality's April 2006 report entitled ``Conserving 
America's Wetlands 2006: Two Years of Progress Implementing the 
President's Goal.''
    Establishment (creation). We are proposing to modify this 
definition to be consistent with the wetland project type described in 
Regulatory Guidance Letter 02-02 and the definition in the Council on 
Environmental Quality's April 2006 report entitled ``Conserving 
America's Wetlands 2006: Two Years of Progress Implementing the 
President's Goal.'' This term would also be applied to the development 
of aquatic resources at upland or deepwater sites.
    Farm tract. We are proposing to remove this definition, since this 
term is not used in the proposed NWPs.
    Flood fringe. We are proposing to remove this definition, since 
this term is not used in the proposed NWPs.
    Floodway. We are proposing to remove this definition, since this 
term is not used in the proposed NWPs.
    Loss of waters of the United States. We are proposing to modify 
this definition by replacing the phrase ``above-grade, at-grade, or 
below-grade fills'' with ``discharges of dredged or fill material'' to 
be consistent with the definitions of ``fill material'' and ``discharge 
of fill material'' issued on May 9, 2002 (67 FR 31129) at 33 CFR 323.2. 
We are also proposing to eliminate the sentence stating that impacts to 
ephemeral streams are not included in the linear foot limits for stream 
impacts in NWPs 39, 40, 42, and 43, because of the proposed changes to 
those NWPs. For those NWPs with 300 linear foot limits for filling or 
excavating stream bed, ephemeral streams will be included when 
determining compliance with that limit. As discussed elsewhere in this 
notice, the district engineer can issue a written waiver to those 
linear foot limits for ephemeral and intermittent streams on a case-by-
case basis if the proposed work will have minimal individual and 
cumulative adverse effects on the aquatic environment. We are proposing 
to add a sentence to this definition to clarify that activities exempt 
from section 404 permit requirements are not included when calculating 
the loss of waters of the United States.
    Open water. We are proposing to change this definition by adding a 
sentence that describes what an ordinary high water mark is.
    Permanent above-grade fill. We are proposing to remove this 
definition, since this term is not used in the proposed NWPs.
    Practicable. We are proposing to move this definition from the 
current ``mitigation'' general condition (GC 20) to the ``Definitions'' 
section of the NWPs.
    Pre-construction notification. We are proposing to add this 
definition to clarify the various circumstances under which a PCN may 
be submitted.
    Preservation. We are proposing to modify this definition to be 
consistent with the definition for ``protection/maintenance 
(preservation)'' in Regulatory Guidance Letter 02-02 and the definition 
in the Council on Environmental Quality's April 2006 report entitled 
``Conserving America's

[[Page 56281]]

Wetlands 2006: Two Years of Progress Implementing the President's 
Goal.''
    Re-establishment. We are proposing to add this definition, to be 
consistent with the wetland project type described in Regulatory 
Guidance Letter 02-02 and the definition in the Council on 
Environmental Quality's April 2006 report entitled ``Conserving 
America's Wetlands 2006: Two Years of Progress Implementing the 
President's Goal.''
    Rehabilitation. We are proposing to add this definition, to be 
consistent with the wetland project type described in Regulatory 
Guidance Letter 02-02 and the definition in the Council on 
Environmental Quality's April 2006 report entitled ``Conserving 
America's Wetlands 2006: Two Years of Progress Implementing the 
President's Goal.''
    Restoration. We are proposing to modify this definition to be 
consistent with the wetland project type described in Regulatory 
Guidance Letter 02-02 and the definition in the Council on 
Environmental Quality's April 2006 report entitled ``Conserving 
America's Wetlands 2006: Two Years of Progress Implementing the 
President's Goal.''
    Riparian areas. We are proposing to replace the definition of 
``vegetated buffers'' with a definition of ``riparian areas'' since the 
latter term more accurately reflects what is normally required as 
mitigation for NWP activities where there are streams and other open 
waters on a project site. Since 1996, we have placed more emphasis in 
the NWP program on protecting streams and other open waters. Also, with 
the issuance of Regulatory Guidance Letter 02-02, we have taken a 
watershed approach to compensatory mitigation, which includes 
consideration of the ecological functions provided by riparian areas.
    In two of the NWPs issued on December 13, 1996 (61 FR 65874), 
specifically NWPs 29 and 30, we began requiring the establishment and 
maintenance of vegetated buffers next to open waters, such as streams, 
to preclude water quality degradation from erosion and sedimentation. 
That requirement was added to some of the NWPs issued on March 9, 2000 
(65 FR 12818). The 2000 NWPs clarified that vegetated buffers could be 
required only for perennial or intermittent streams or other open 
waters on the site. The vegetated buffer requirement does not apply to 
other aquatic resources, such as wetlands.
    Since the requirements of past NWPs, as well as the current NWPs, 
have focused on using vegetated areas next to open waters such as 
streams to ensure that certain NWP activities result in minimal adverse 
effects on the aquatic environment, the term ``riparian area'' is more 
accurate, and more clearly conveys to the regulated public a specific 
type of mitigation that may be required for some NWPs. The term 
``vegetated buffer'' is a vague term, because it can apply to any 
vegetated area next to some feature in the landscape.
    In 2002, the National Research Council (NRC) published a report 
entitled ``Riparian Areas: Functions and Strategies for Management.'' 
The proposed definition of ``riparian areas'' was adapted with 
modifications from the definition developed by the NRC.
    Stream channelization. We are proposing to simplify this 
definition, by generally considering man-made changes to a stream's 
course, condition, capacity, or location to be stream channelization 
activities.
    Structure. We are proposing to add this definition to the NWPs. The 
examples in this definition were adapted from 33 CFR 322.2(b).
    Vegetated buffer. For the reasons discussed in the preamble 
discussion of the proposed definition of ``riparian area'' we are 
proposing to remove this definition.
    Waterbody. We are proposing to modify this definition to clarify 
that a waterbody is a jurisdictional water of the United States, and 
that it would have flowing or standing water during years with normal 
patterns of precipitation to the extent that an ordinary high water 
mark or other indicators of jurisdiction can be determined. The 
waterbody would include wetland areas. We are also proposing to amend 
this definition by adding a sentence that describes what an ordinary 
high water mark is. We are proposing to modify this definition so that 
a waterbody and its adjacent wetlands would be considered together as a 
single aquatic unit. The purpose of this definition is not to identify 
which waterbodies are jurisdictional, but to clarify how adjacent 
waters of the United States are grouped into waterbodies, especially 
for the purposes of implementing 33 CFR 330.2(i), which addresses 
single and complete projects for the NWPs.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, (63 FR 31855) regarding plain language, this preamble is 
written using plain language. The use of ``we'' in this notice refers 
to the Corps. We have also used the active voice, short sentences, and 
common everyday terms except for necessary technical terms.

Paperwork Reduction Act

    The proposed NWPs will increase the number of permittees who are 
required to submit a PCN. The content of the PCN is not changed from 
the current NWPs, but the paperwork burden will increase because of the 
increased number of PCNs submitted. The Corps estimates the increased 
paperwork burden at 4,500 hours per year. This is based on an average 
burden to complete and submit a PCN of 10 hours, and an estimated 450 
additional projects that will require PCNs. Prospective permittees who 
are required to submit a pre-construction notification (PCN) for a 
particular NWP, or who are requesting verification that a particular 
activity qualifies for NWP authorization, may use the current standard 
Department of the Army permit application form.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid Office of Management and Budget (OMB) control number. 
For the Corps Regulatory Program under Section 10 of the Rivers and 
Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 
103 of the Marine Protection, Research and Sanctuaries Act of 1972, the 
current OMB approval number for information collection requirements is 
maintained by the Corps of Engineers (OMB approval number 0710-0003, 
which expires on April 30, 2008).

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must 
determine whether the regulatory action is ``significant'' and 
therefore subject to review by OMB and the requirements of the 
Executive Order. The Executive Order defines ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the

[[Page 56282]]

President's priorities, or the principles set forth in the Executive 
Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that the proposed rule is a ``significant regulatory action'' and the 
draft was submitted to OMB for review.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' The proposed issuance and modification of NWPs does not 
have federalism implications. We do not believe that the proposed NWPs 
will have substantial direct effects on the States, on the relationship 
between the Federal government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
The proposed NWPs will not impose any additional substantive 
obligations on State or local governments. Therefore, Executive Order 
13132 does not apply to this proposal.

Regulatory Flexibility Act, as Amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 601 et seq.

    The Regulatory Flexibility Act generally requires an agency to 
prepare a regulatory flexibility analysis of any rule subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the proposed issuance and 
modification of NWPs on small entities, a small entity is defined as: 
(1) A small business based on Small Business Administration size 
standards; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district, or special district with a 
population of less than 50,000; or (3) a small organization that is any 
not-for-profit enterprise which is independently owned and operated and 
is not dominant in its field.
    The statues under which the Corps issues, reissues, or modifies 
nationwide permits are Section 404(e) of the Clean Water Act (33 U.S.C. 
1344(e)) and Section 10 of the Rivers and Harbors Act of 1899 (33 
U.S.C. 403). Under section 404, Department of the Army (DA) permits are 
required for discharges of dredged or fill material into waters of the 
United States. Under section 10, DA permits are required for any 
structures or other work that affect the course, location, or condition 
of navigable waters of the United States. Small entities proposing to 
discharge dredged or fill material into waters of the United States 
and/or conduct work in navigable waters of the United States must 
obtain DA permits to conduct those activities, unless a particular 
activity is exempt from those permit requirements. Individual permits 
and general permits can be issued by the Corps to satisfy the permit 
requirements of these two statutes. Nationwide permits are a form of 
general permit issued by the Chief of Engineers.
    Nationwide permits automatically expire and become null and void if 
they are not modified or reissued within five years of their effective 
date (see 33 CFR 330.6(b)). Furthermore, Section 404(e) of the Clean 
Water Act states that general permits, including NWPs, can be issued 
for no more than 5 years. If the current NWPs are not reissued, they 
will expire on March 18, 2007, and small entities and other project 
proponents would be required to obtain alternative forms of DA permits 
(i.e., standard permits, letters of permission, or regional general 
permits) for activities involving discharges of dredged or fill 
material into waters of the United States or structures or work in 
navigable waters of the United States. Regional general permits that 
authorize similar activities as the NWPs may be available in some 
geographic areas, so small entities conducting regulated activities 
outside those geographic areas would have to obtain individual permits 
for activities that require DA permits.
    Nationwide permits help relieve regulatory burdens on small 
entities who need to obtain DA permits. They provide an expedited form 
of authorization, provided the project proponent meets all terms and 
conditions of the NWPs. In FY 2003, the Corps issued 35,317 NWP 
verifications, with an average processing time of 27 days. Those 
numbers do not include activities that are authorized by NWP, where the 
project proponent was not required to submit a pre-construction 
notification or did not voluntarily seek verification that an activity 
qualified for NWP authorization. The average processing times for the 
4,035 standard permits and the 3,040 letters of permission issued 
during FY 2003 were 187 days and 89 days, respectively. The NWPs 
proposed for reissuance, as well as the proposed new NWPs, are expected 
to result in a slight increase in the numbers of activities potentially 
qualifying for NWP authorization. The estimated numbers of activities 
qualifying for NWP authorization are provided in the draft decision 
documents that were prepared for each NWP. The revised NWPs are not 
expected to significantly increase cost or paperwork burden for 
authorized activities (relative to the current NWPs), including those 
conducted by small businesses.
    When compared to the compliance costs for individual permits, most 
of the terms and conditions of the proposed NWPs are expected to result 
in decreases in the costs of complying with the permit requirements of 
sections 10 and 404. The anticipated decrease in compliance cost 
results from the lower cost of obtaining NWP authorization instead of 
standard permits. Unlike standard permits, NWPs authorize activities 
without the requirement for public notice and comment on each proposed 
activity.
    Another requirement of Section 404(e) of the Clean Water Act is 
that general permits, including nationwide permits, authorize only 
those activities that result in minimal adverse environmental effects, 
individually and cumulatively. The terms and conditions of the NWPs, 
such as acreage or linear foot limits, are imposed to ensure that the 
NWPs authorize only those activities that result in minimal adverse 
effects on the aquatic environment and other public interest review 
factors.
    After considering the economic impacts of the proposed nationwide 
permits on small entities, I certify that this action will not have a 
significant impact on a substantial number of small entities. Small 
entities may obtain required DA authorizations through the NWPs, in 
cases where there are applicable NWPs authorizing those activities and 
the proposed work will result in minimal adverse effects on the aquatic 
environment and other public interest review factors. The terms and 
conditions of the revised NWPs will not impose substantially higher 
costs on small entities than those of the existing NWPs. If an NWP is 
not available to authorize a particular activity, then another form of 
DA authorization, such as an individual permit or regional general 
permit, must be secured. However, as noted above, we expect a slight 
increase in the number of activities than can be authorized through 
NWPs, because we are adding several new NWPs, and we are removing some 
limitations in existing NWPs and replacing them with PCN requirements 
that will allow the district

[[Page 56283]]

engineer to judge whether any adverse effects of the proposed project 
are more than minimal, and authorize the project under an NWP if they 
are not.
    We are interested in the potential impacts of the proposed NWPs on 
small entities and welcome comments on issues related to such impacts.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, the 
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``federal 
mandates'' that may result in expenditures to State, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating a rule for which a 
written statement is needed, Section 205 of the UMRA generally requires 
the agencies to identify and consider a reasonable number of regulatory 
alternatives and adopt the least costly, most cost-effective, or least 
burdensome alternative that achieves the objectives of the rule. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law. Moreover, section 205 allows an agency to adopt an 
alternative other than the least costly, most cost-effective, or least 
burdensome alternative if the agency publishes with the final rule an 
explanation why that alternative was not adopted. Before an agency 
establishes any regulatory requirements that may significantly or 
uniquely affect small governments, including tribal governments, it 
must have developed, under Section 203 of the UMRA, a small government 
agency plan. The plan must provide for notifying potentially affected 
small governments, enabling officials of affected small governments to 
have meaningful and timely input in the development of regulatory 
proposals with significant federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    We have determined that the proposed NWPs do not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and Tribal governments, in the aggregate, or the private 
sector in any one year. The proposed NWPs are generally consistent with 
current agency practice, do not impose new substantive requirements and 
therefore do not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any one year. 
Therefore, this proposal is not subject to the requirements of Sections 
202 and 205 of the UMRA. For the same reasons, we have determined that 
the proposed NWPs contains no regulatory requirements that might 
significantly or uniquely affect small governments. Therefore, the 
proposed issuance and modification of NWPs is not subject to the 
requirements of Section 203 of UMRA.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the proposed rule on children, and explain why the 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives.
    The proposed NWPs are not subject to this Executive Order because 
they are not economically significant as defined in Executive Order 
12866. In addition, the proposed NWPs do not concern an environmental 
or safety risk that we have reason to believe may have a 
disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.''
    The proposed NWPs do not have tribal implications. It is generally 
consistent with current agency practice and will not have substantial 
direct effects on tribal governments, on the relationship between the 
Federal government and the Indian tribes, or on the distribution of 
power and responsibilities between the Federal government and Indian 
tribes. Therefore, Executive Order 13175 does not apply to this 
proposal. However, in the spirit of Executive Order 13175, we 
specifically request comment from tribal officials on the proposed 
rule.

Environmental Documentation

    A preliminary decision document, which includes a draft 
environmental assessment and Finding of No Significant Impact (FONSI) 
has been prepared for each proposed NWP. These preliminary decision 
documents are available at: www.regulations.gov (docket ID number COE-
2006-0005). They are also available by contacting Headquarters, U.S. 
Army Corps of Engineers, Operations and Regulatory Community of 
Practice, 441 G Street, NW., Washington, DC 20314-1000.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing the final NWPs and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. The proposed NWPs are not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.

[[Page 56284]]

    The proposed NWPs are not expected to negatively impact any 
community, and therefore are not expected to cause any 
disproportionately high and adverse impacts to minority or low-income 
communities.

Executive Order 13211

    The proposed NWPs are not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

Authority

    We are proposing to issue new NWPs, modify existing NWPs, and 
reissue NWPs without change under the authority of Section 404(e) of 
the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and 
Harbors Act of 1899 (33 U.S.C. 401 et seq.)

    Dated: September 18, 2006.
Don T. Riley,
Major General, U.S. Army, Director of Civil Works.

Nationwide Permits, Conditions, Further Information, and Definitions

A. Index of Nationwide Permits, Conditions, Further Information, and 
Definitions

Nationwide Permits
1. Aids to Navigation
2. Structures in Artificial Canals
3. Maintenance
4. Fish and Wildlife Harvesting, Enhancement, and Attraction Devices 
and Activities
5. Scientific Measurement Devices
6. Survey Activities
7. Outfall Structures and Associated Intake Structures
8. Oil and Gas Structures on the Outer Continental Shelf
9. Structures in Fleeting and Anchorage Areas
10. Mooring Buoys
11. Temporary Recreational Structures
12. Utility Line Activities
13. Bank Stabilization
14. Linear Transportation Projects
15. U.S. Coast Guard Approved Bridges
16. Return Water From Upland Contained Disposal Areas
17. Hydropower Projects
18. Minor Discharges
19. Minor Dredging
20. Oil Spill Cleanup
21. Surface Coal Mining Operations
22. Removal of Vessels
23. Approved Categorical Exclusions
24. Indian Tribe or State Administered Section 404 Programs
25. Structural Discharges
26. [Reserved]
27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities
28. Modifications of Existing Marinas
29. Residential Developments
30. Moist Soil Management for Wildlife
31. Maintenance of Existing Flood Control Facilities
32. Completed Enforcement Actions
33. Temporary Construction, Access, and Dewatering
34. Cranberry Production Activities
35. Maintenance Dredging of Existing Basins
36. Boat Ramps
37. Emergency Watershed Protection and Rehabilitation
38. Cleanup of Hazardous and Toxic Waste
39. Commercial and Institutional Developments
40. Agricultural Activities
41. Reshaping Existing Drainage Ditches
42. Recreational Facilities
43. Stormwater Management Facilities
44. Mining Activities
A. Emergency Repair Activities
B. Discharges into Ditches and Canals
C. Pipeline Safety Program Designated Time Sensitive Inspections and 
Repairs
D. Commercial Shellfish Aquaculture Activities
E. Coal Remining Activities
F. Underground Coal Mining Activities
Nationwide Permit General Conditions
1. Navigation
2. Aquatic Life Movements
3. Spawning Areas
4. Migratory Bird Breeding Areas
5. Shellfish Beds
6. Suitable Material
7. Water Supply Intakes
8. Adverse Effects from Impoundments
9. Management of Water Flows
10. Fills Within 100-Year Floodplains
11. Equipment
12. Soil Erosion and Sediment Controls
13. Removal of Temporary Fills
14. Proper Maintenance
15. Wild and Scenic Rivers
16. Tribal Rights
17. Endangered Species
18. Historic Properties
19. Designated Critical Resource Waters
20. Mitigation
21. Water Quality
22. Coastal Zone Management
23. Regional and Case-by-Case Conditions
24. Use of Multiple Nationwide Permits
25. Transfer of Nationwide Permit Verifications
26. Compliance Certification
27. Pre-Construction Notification
Further Information
Definitions
Best management practices (BMPs)
Compensatory mitigation
Currently serviceable
Enhancement
Ephemeral stream
Establishment (creation)
Independent utility
Intermittent stream
Loss of waters of the United States
Non-tidal wetland
Open water
Perennial stream
Practicable
Pre-construction notification
Preservation
Re-establishment
Rehabilitation
Restoration
Riffle and pool complex
Riparian areas
Single and complete project
Stormwater management
Stormwater management facilities
Stream bed
Stream channelization
Structure
Tidal wetland
Vegetated shallows
Waterbody

B. Nationwide Permits

    1. Aids to Navigation. The placement of aids to navigation and 
regulatory markers which are approved by and installed in accordance 
with the requirements of the U.S. Coast Guard (see 33 CFR, chapter I, 
subchapter C, part 66). (Section 10)
    2. Structures in Artificial Canals. Structures constructed in 
artificial canals within principally residential developments where the 
connection of the canal to a navigable water of the United States has 
been previously authorized (see 33 CFR 322.5(g)). (Section 10)
    3. Maintenance. (a) The repair, rehabilitation, or replacement of 
any previously authorized, currently serviceable, structure, or fill, 
or of any currently serviceable structure or fill authorized by 33 CFR 
330.3, provided that the structure or fill is not to be put to uses 
differing from those uses specified or contemplated for it in the 
original permit or the most recently authorized modification. Minor 
deviations in the structure's configuration or filled area, including 
those due to changes in materials, construction techniques, or current 
construction codes or safety standards that are necessary to make 
repair, rehabilitation, or replacement are authorized.
    (b) This NWP also authorizes the removal of accumulated sediments 
and debris in the vicinity of and within existing structures (e.g., 
bridges, culverted road crossings, water intake

[[Page 56285]]

structures, etc.) and the placement of new or additional riprap to 
protect the structure. The removal of sediment is limited to the 
minimum necessary to restore the waterway in the immediate vicinity of 
the structure to the approximate dimensions that existed when the 
structure was built, but cannot extend further than 200 feet in any 
direction from the structure. This 200 foot limit does not apply to 
maintenance dredging to remove accumulated sediments blocking or 
restricting outfall and intake structures or to maintenance dredging to 
remove accumulated sediments from canals associated with outfall and 
intake structures. All dredged or excavated materials must be deposited 
and retained in an upland area unless otherwise specifically approved 
by the district engineer under separate authorization. The placement of 
riprap must be the minimum necessary to protect the structure or to 
ensure the safety of the structure. Any bank stabilization measures not 
directly associated with the structure will require a separate 
authorization from the district engineer.
    (c) Separate authorization is required for temporary structures or 
work in navigable waters of the United States or temporary discharges 
of dredged or fill material into waters of the United States, if those 
activities are necessary to conduct the maintenance activity and are 
not exempt from permit requirements. This NWP does not authorize 
maintenance dredging for the primary purpose of navigation or beach 
restoration. This NWP does not authorize new stream channelization or 
stream relocation projects.
    Notification: For activities authorized by paragraph (b) of this 
NWP, the permittee must submit a pre-construction notification to the 
district engineer prior to commencing the activity (see general 
condition 27). Where maintenance dredging is proposed, the pre-
construction notification must include information regarding the 
original design capacities and configurations of the outfalls, intakes, 
small impoundments, and canals. (Sections 10 and 404.)


    Note: This NWP authorizes the repair, rehabilitation, or 
replacement of any previously authorized structure or fill that does 
not qualify for the Clean Water Act Section 404(f) exemption for 
maintenance.


    4. Fish and Wildlife Harvesting, Enhancement, and Attraction 
Devices and Activities. Fish and wildlife harvesting devices and 
activities such as pound nets, crab traps, crab dredging, eel pots, 
lobster traps, duck blinds, clam and oyster digging, and small fish 
attraction devices such as open water fish concentrators (sea kites, 
etc.). This NWP does not authorize artificial reefs or impoundments and 
semi-impoundments of waters of the United States for the culture or 
holding of motile species such as lobster, or the use of covered oyster 
trays or clam racks. (Sections 10 and 404.)
    5. Scientific Measurement Devices. Devices, whose purpose is to 
measure and record scientific data such as staff gages, tide gages, 
water recording devices, water quality testing and improvement devices 
and similar structures. Small weirs and flumes constructed primarily to 
record water quantity and velocity are also authorized provided the 
discharge is limited to 25 cubic yards. (Sections 10 and 404.)
    6. Survey Activities. Survey activities, such as core sampling, 
seismic exploratory operations, plugging of seismic shot holes and 
other exploratory-type bore holes, exploratory trenching, soil surveys, 
sampling, and historic resources surveys. For the purposes of this NWP, 
the term ``exploratory trenching'' means mechanical land clearing of 
the upper soil profile to expose bedrock or substrate, for the purpose 
of mapping and sampling the exposed material. The area in which the 
exploratory trench is dug must be restored to its pre-construction 
elevation upon completion of the work This NWP authorizes the 
construction of temporary pads, provided the discharge does not exceed 
25 cubic yards. Discharges and structures associated with the recovery 
of historic resources are not authorized by this NWP. Drilling and the 
discharge of excavated material from test wells for oil and gas 
exploration are not authorized by this NWP; the plugging of such wells 
is authorized. Fill placed for roads and other similar activities is 
not authorized by this NWP. The NWP does not authorize any permanent 
structures. The discharge of drilling mud and cuttings may require a 
permit under Section 402 of the Clean Water Act. (Sections 10 and 404.)
    7. Outfall Structures and Associated Intake Structures. Activities 
related to the construction of outfall structures and associated intake 
structures, where the effluent from the outfall is authorized, 
conditionally authorized, or specifically exempted, or that are 
otherwise in compliance with regulations issued under the National 
Pollutant Discharge Elimination System Program (Section 402 of the 
Clean Water Act). The construction of intake structures is not 
authorized by this NWP, unless they are directly associated with an 
authorized outfall structure.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Sections 10 and 404.)
    8. Oil and Gas Structures on the Outer Continental Shelf. 
Structures for the exploration, production, and transportation of oil, 
gas, and minerals on the outer continental shelf within areas leased 
for such purposes by the Department of the Interior, Minerals 
Management Service. Such structures shall not be placed within the 
limits of any designated shipping safety fairway or traffic separation 
scheme, except temporary anchors that comply with the fairway 
regulations in 33 CFR 322.5(l). The district engineer will review such 
proposals to ensure compliance with the provisions of the fairway 
regulations in 33 CFR 322.5(l). Any Corps review under this NWP will be 
limited to the effects on navigation and national security in 
accordance with 33 CFR 322.5(f). Such structures will not be placed in 
established danger zones or restricted areas as designated in 33 CFR 
part 334, nor will such structures be permitted in EPA or Corps 
designated dredged material disposal areas.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Section 10)
    9. Structures in Fleeting and Anchorage Areas. Structures, buoys, 
floats and other devices placed within anchorage or fleeting areas to 
facilitate moorage of vessels where the U.S. Coast Guard has 
established such areas for that purpose. (Section 10)
    10. Mooring Buoys. Non-commercial, single-boat, mooring buoys. 
(Section 10)
    11. Temporary Recreational Structures. Temporary buoys, markers, 
small floating docks, and similar structures placed for recreational 
use during specific events such as water skiing competitions and boat 
races or seasonal use, provided that such structures are removed within 
30 days after use has been discontinued. At Corps of Engineers 
reservoirs, the reservoir manager must approve each buoy or marker 
individually. (Section 10)
    12. Utility Line Activities. Activities required for the 
construction, maintenance, repair, and removal of utility lines and 
associated facilities in waters of the United States, provided the 
activity does not result in the loss of greater than \1/2\ acre of 
waters of the United States.

[[Page 56286]]

    This NWP authorizes the construction, maintenance, or repair of 
utility lines, including outfall and intake structures and the 
associated excavation, backfill, or bedding for the utility lines, in 
all waters of the United States, provided there is no change in 
preconstruction contours. A ``utility line'' is defined as any pipe or 
pipeline for the transportation of any gaseous, liquid, liquescent, or 
slurry substance, for any purpose, and any cable, line, or wire for the 
transmission for any purpose of electrical energy, telephone, and 
telegraph messages, and radio and television communication. The term 
``utility line'' does not include activities that drain a water of the 
United States, such as drainage tile or french drains, but it does 
apply to pipes conveying drainage from another area.
    Material resulting from trench excavation may be temporarily 
sidecast into waters of the United States for no more than three 
months, provided that the material is not placed in such a manner that 
it is dispersed by currents or other forces. The district engineer may 
extend the period of temporary side casting for no more than a total of 
180 days, where appropriate. In wetlands, the top 6'' to 12'' of the 
trench should normally be backfilled with topsoil from the trench. The 
trench cannot be constructed or backfilled in such a manner as to drain 
waters of the United States (e.g., backfilling with extensive gravel 
layers, creating a french drain effect). Any exposed slopes and stream 
banks must be stabilized immediately upon completion of the utility 
line crossing of each waterbody.
    This NWP authorizes the construction, maintenance, or expansion of 
substation facilities associated with a power line or utility line in 
non-tidal waters of the United States, provided the activity does not 
result in the loss of greater than \1/2\ acre of those waters. This NWP 
does not authorize discharges into non-tidal wetlands adjacent to tidal 
waters of the United States to construct substation facilities.
    This NWP authorizes the construction or maintenance of foundations 
for overhead utility line towers, poles, and anchors in all waters of 
the United States, provided the foundations are the minimum size 
necessary and separate footings for each tower leg (rather than a 
larger single pad) are used where feasible.
    This permit does not authorize the construction or maintenance of 
access roads. The construction of permanent maintenance roads may be 
authorized by NWP 14 and the construction of temporary construction 
roads may be authorized by NWP 33.
    This NWP may authorize utility lines in or affecting navigable 
waters of the United States even if there is no associated discharge of 
dredged or fill material (See 33 CFR Part 322). Overhead utility lines 
constructed over section 10 waters and utility lines that are routed in 
or under section 10 waters without a discharge of dredged or fill 
material require a section 10 permit.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) A section 10 permit is required, or (2) the discharge will 
result in the permanent or temporary loss of greater than \1/10\ acre 
of waters of the United States. (See general condition 27.) (Sections 
10 and 404.)


    Note 1: Where the proposed utility line is constructed or 
installed in navigable waters of the United States (i.e., section 10 
waters), copies of the PCN and NWP verification will be sent by the 
Corps to the National Oceanic and Atmospheric Administration (NOAA), 
National Ocean Service (NOS), for charting the utility line to 
protect navigation.


    Note 2: Pipes or pipelines used to transport gaseous, liquid, 
liquescent, or slurry substances over navigable waters of the United 
States are considered to be bridges, not utility lines, and may 
require a permit from the U.S. Coast Guard pursuant to Section 9 of 
the Rivers and Harbors Act of 1899. However, any discharges of 
dredged or fill material into waters of the United States associated 
with such pipelines will require a section 404 permit.


    13. Bank Stabilization. Bank stabilization activities necessary for 
erosion prevention, provided the activity meets all of the following 
criteria:
    (a) No material is placed in excess of the minimum needed for 
erosion protection;
    (b) The bank stabilization activity is no more than 500 feet in 
length, unless this criterion is waived in writing by the district 
engineer;
    (c) The activity will not exceed an average of one cubic yard per 
running foot placed along the bank below the plane of the ordinary high 
water mark or the high tide line, unless this criterion is waived in 
writing by the district engineer;
    (d) No material is of the type, or is placed in any location, or in 
any manner, to impair surface water flow into or out of any wetland 
area;
    (e) No material is placed in a manner that will be eroded by normal 
or expected high flows (properly anchored trees and treetops may be 
used in low energy areas); and,
    (f) The activity is not a stream channelization activity.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if the bank stabilization activity: (1) Involves discharges into 
special aquatic sites; (2) is in excess of 500 feet in length; or (3) 
will involve the discharge of greater than an average of one cubic yard 
per running foot along the bank below the plane of the ordinary high 
water mark or the high tide line. (See general condition 27.) (Sections 
10 and 404.)
    14. Linear Transportation Projects. Activities required for the 
construction, expansion, modification, or improvement of linear 
transportation projects (e.g., roads, highways, railways, trails, 
airport runways, and taxiways) in waters of the United States. For 
linear transportation projects in non-tidal waters, the discharge 
cannot cause the loss of greater than \1/2\-acre of waters of the 
United States. For linear transportation projects in tidal waters, the 
discharge cannot cause the loss of greater than \1/3\-acre of waters of 
the United States. Any stream channel modification, including bank 
stabilization, is limited to the minimum necessary to construct or 
protect the linear transportation project; such modifications must be 
in the immediate vicinity of the project.
    This NWP cannot be used to authorize non-linear features commonly 
associated with transportation projects, such as vehicle maintenance or 
storage buildings, parking lots, train stations, or aircraft hangars. 
This NWP does not authorize temporary construction, access, and 
dewatering necessary to construct the linear transportation project; 
those activities may be authorized by NWP 33.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge causes the loss of greater than \1/10\ acre of 
waters of the United States; or (2) there is a discharge in a special 
aquatic site, including wetlands. (See general condition 27.) (Sections 
10 and 404.)


    Note: Some discharges for the construction of farm roads, forest 
roads, or temporary roads for moving mining equipment may qualify 
for an exemption under Section 404(f) of the Clean Water Act (see 33 
CFR 323.4).


    15. U.S. Coast Guard Approved Bridges. Discharges of dredged or 
fill material incidental to the construction of bridges across 
navigable waters of the United States, including cofferdams, abutments, 
foundation seals, piers, and

[[Page 56287]]

temporary construction and access fills, provided such discharges have 
been authorized by the U.S. Coast Guard as part of the bridge permit. 
Causeways and approach fills are not included in this NWP and will 
require an individual section 404 permit or a regional general section 
404 permit. (Section 404.)
    16. Return Water From Upland Contained Disposal Areas. Return water 
from an upland contained dredged material disposal area. The return 
water from a contained disposal area is administratively defined as a 
discharge of dredged material by 33 CFR 323.2(d), even though the 
disposal itself occurs on the upland and does not require a section 404 
permit. This NWP satisfies the technical requirement for a section 404 
permit for the return water where the quality of the return water is 
controlled by the state through the section 401 certification 
procedures. The dredging activity may require a section 404 permit (33 
CFR 323.2(d)), and will require a section 10 permit if located in 
navigable waters of the United States. (Section 404)
    17. Hydropower Projects. Discharges of dredged or fill material 
associated with hydropower projects having: (a) Less than 5000 kW of 
total generating capacity at existing reservoirs, where the project, 
including the fill, is licensed by the Federal Energy Regulatory 
Commission (FERC) under the Federal Power Act of 1920, as amended; or 
(b) a licensing exemption granted by the FERC pursuant to Section 408 
of the Energy Security Act of 1980 (16 U.S.C. 2705 and 2708) and 
Section 30 of the Federal Power Act, as amended.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Section 404)
    18. Minor Discharges. Minor discharges of dredged or fill material 
into all waters of the United States, provided the activity meets all 
of the following criteria:
    (a) The quantity of discharged material and the volume of area 
excavated do not exceed 25 cubic yards below the plane of the ordinary 
high water mark or the high tide line;
    (b) The discharge will not cause the loss of more than \1/10\ acre 
of waters of the United States; and
    (c) The discharge is not placed for the purpose of a stream 
diversion.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge or the volume of area excavated exceeds 10 cubic 
yards below the plane of the ordinary high water mark or the high tide 
line, or (2) the discharge is in a special aquatic site, including 
wetlands. (See general condition 27.) (Sections 10 and 404.)
    19. Minor Dredging. Dredging of no more than 25 cubic yards below 
the plane of the ordinary high water mark or the mean high water mark 
from navigable waters of the United States (i.e., section 10 waters). 
This NWP does not authorize the dredging or degradation through 
siltation of coral reefs, sites that support submerged aquatic 
vegetation (including sites where submerged aquatic vegetation is 
documented to exist but may not be present in a given year), anadromous 
fish spawning areas, or wetlands, or the connection of canals or other 
artificial waterways to navigable waters of the United States (see 33 
CFR 322.5(g)). (Sections 10 and 404.)
    20. Oil Spill Cleanup. Activities required for the containment and 
cleanup of oil and hazardous substances that are subject to the 
National Oil and Hazardous Substances Pollution Contingency Plan (40 
CFR part 300) provided that the work is done in accordance with the 
Spill Control and Countermeasure Plan required by 40 CFR 112.3 and any 
existing state contingency plan and provided that the Regional Response 
Team (if one exists in the area) concurs with the proposed containment 
and cleanup action. (Sections 10 and 404.)
    21. Surface Coal Mining Operations. Discharges of dredged or fill 
material into waters of the United States associated with surface coal 
mining and reclamation operations provided the activities are already 
authorized by the Department of Interior (DOI), Office of Surface 
Mining (OSM), or by states with approved programs under Title V of the 
Surface Mining Control and Reclamation Act of 1977 or are currently 
being processed as part of an integrated permit processing procedure.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 27.) (Sections 
10 and 404.)
    22. Removal of Vessels. Temporary structures or minor discharges of 
dredged or fill material required for the removal of wrecked, 
abandoned, or disabled vessels, or the removal of man-made obstructions 
to navigation. This NWP does not authorize maintenance dredging, shoal 
removal, or riverbank snagging.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The vessel is listed or eligible for listing in the National 
Register of Historic Places; or (2) if there is a discharge of dredged 
or fill material in a special aquatic site, including wetlands. (See 
general condition 27.) The permittee cannot commence the activity until 
informed by the district engineer that compliance with the ``Historic 
Properties'' general condition is completed.


    Note: If a removed vessel is disposed of in waters of the United 
States, a permit from the U.S. EPA may be required (see 40 CFR 
229.3). If a Corps permit is required for vessel disposal in waters 
of the United States, a separate Department of the Army 
authorization will be required.


    23. Approved Categorical Exclusions. Activities undertaken, 
assisted, authorized, regulated, funded, or financed, in whole or in 
part, by another Federal agency or department where:
    (a) That agency or department has determined, pursuant to the 
Council on Environmental Quality's implementing regulations for the 
National Environmental Policy Act (40 CFR part 1500 et seq.), that the 
activity is categorically excluded from environmental documentation, 
because it is included within a category of actions which neither 
individually nor cumulatively have a significant effect on the human 
environment; and
    (b) The Office of the Chief of Engineers (Attn: CECW-CO) has 
concurred with that agency's or department's determination that the 
activity is categorically excluded and approved the activity for 
authorization under NWP 23.
    The Office of the Chief of Engineers may require additional 
conditions, including pre-construction notification, for authorization 
of an agency's categorical exclusions under this NWP.
    Notification: Certain categorical exclusions approved for 
authorization under this NWP require the permittee to submit a pre-
construction notification to the district engineer prior to commencing 
the activity (see general condition 27). The activities that require 
pre-construction notification are listed in the appropriate Regulatory 
Guidance Letters. (Sections 10 and 404.)


    Note: The agency or department may submit an application for an 
activity believed to be categorically excluded to the Office of the 
Chief of Engineers (Attn: CECW-CO). Prior to approval for 
authorization under this NWP of any agency's activity, the Office of 
the Chief of Engineers will solicit public comment. Current 
activities approved for authorization under this NWP are found in 
the Corps' Regulatory Guidance Letters, which are available at: 
http://www.usace.army.mil/inet/functions/cw/cecwo/reg/rglsindx.htm


[[Page 56288]]


    24. Indian Tribe or State Administered Section 404 Programs. Any 
activity permitted by a state or Indian Tribe administering its own 
section 404 permit program pursuant to 33 U.S.C. 1344(g)-(l) is 
permitted pursuant to Section 10 of the Rivers and Harbors Act of 1899. 
(Section 10)


    Note 1: As of the date of the promulgation of this NWP, only New 
Jersey and Michigan administer their own section 404 permit 
programs.


    Note 2: Those activities that do not involve a State section 404 
permit are not included in this NWP, but certain structures will be 
exempted by Section 154 of Pub. L. 94-587, 90 Stat. 2917 (33 U.S.C. 
591) (see 33 CFR 322.3(a)(2)).


    25. Structural Discharges. Discharges of material such as concrete, 
sand, rock, etc., into tightly sealed forms or cells where the material 
will be used as a structural member for standard pile supported 
structures, such as bridges, transmission line footings, and walkways 
or for general navigation, such as mooring cells, including the 
excavation of bottom material from within the form prior to the 
discharge of concrete, sand, rock, etc. This NWP does not authorize 
filled structural members that would support buildings, building pads, 
homes, house pads, parking areas, storage areas and other such 
structures. The structure itself may require a section 10 permit if 
located in navigable waters of the United States. (Section 404)
    26. [Reserved]
    27. Aquatic Habitat Restoration, Establishment, and Enhancement 
Activities. Activities in waters of the United States associated with 
the restoration of former waters, the enhancement of degraded tidal and 
non-tidal wetlands and riparian areas, the establishment of tidal and 
non-tidal wetlands and riparian areas, the restoration of non-tidal 
streams, and the restoration and enhancement of non-tidal open waters, 
provided those activities result in net increases in aquatic resource 
functions and services.
    To the extent that a Corps permit is required, activities 
authorized by this NWP include, but are not limited to: The removal of 
accumulated sediments; the installation, removal, and maintenance of 
small water control structures, dikes, and berms; the installation of 
current deflectors; the enhancement, restoration, or establishment of 
riffle and pool stream structure; the placement of in-stream habitat 
structures; modifications of the stream bed and/or banks to restore or 
establish stream meanders; the backfilling of artificial channels and 
drainage ditches; the removal of existing drainage structures; the 
construction of small nesting islands; the construction of open water 
areas; the construction of oyster habitat over unvegetated bottom in 
tidal waters; shellfish seeding; activities needed to reestablish 
vegetation, including plowing or discing for seed bed preparation and 
the planting of appropriate wetland species; mechanized land clearing 
to remove non-native invasive, exotic, or nuisance vegetation; and 
other related activities. Only native plant species should be planted 
at the site.
    This NWP does not authorize the conversion of a stream or natural 
wetlands to another aquatic use, such as the establishment of an 
impoundment for waterfowl habitat. This NWP does not authorize stream 
channelization. However, this NWP authorizes the relocation of non-
tidal waters, including non-tidal wetlands, on the project site 
provided there are net gains in aquatic resource functions and 
services. For example, this NWP may authorize the establishment of an 
open water impoundment in a non-tidal emergent wetland, provided the 
non-tidal emergent wetland is replaced by establishing that wetland 
type on the project site. This NWP does not authorize the relocation of 
tidal waters or the conversion of tidal waters, including tidal 
wetlands, to other aquatic uses, such as the conversion of tidal 
wetlands into open water impoundments.
    Reversion. For enhancement, restoration, and establishment 
activities conducted: (1) In accordance with the terms and conditions 
of a binding wetland enhancement, restoration, or establishment 
agreement between the landowner and the U.S. Fish and Wildlife Service 
(FWS), the Natural Resources Conservation Service (NRCS), the Farm 
Service Agency (FSA), the National Marine Fisheries Service (NMFS), the 
National Ocean Service (NOS), or their designated state cooperating 
agencies; (2) as voluntary wetland restoration, enhancement, and 
establishment actions documented by the NRCS pursuant to NRCS 
regulations; or (3) on reclaimed surface coal mine lands, in accordance 
with a Surface Mining Control and Reclamation Act permit issued by the 
OSM or the applicable state agency, this NWP also authorizes any future 
discharge of dredged or fill material associated with the reversion of 
the area to its documented prior condition and use (i.e., prior to the 
restoration, enhancement, or establishment activities). The reversion 
must occur within five years after expiration of a limited term wetland 
restoration or establishment agreement or permit, and is authorized in 
these circumstances even if the discharge occurs after this NWP 
expires. The five-year reversion limit does not apply to agreements 
without time limits reached between the landowner and the FWS, NRCS, 
FSA, NMFS, NOS, or an appropriate state cooperating agency. This NWP 
also authorizes discharges of dredged or fill material in waters of the 
United States for the reversion of wetlands that were restored, 
enhanced, or established on prior-converted cropland that has not been 
abandoned or on uplands, in accordance with a binding agreement between 
the landowner and NRCS, FSA, FWS, or their designated state cooperating 
agencies (even though the restoration, enhancement, or establishment 
activity did not require a section 404 permit). The prior condition 
will be documented in the original agreement or permit, and the 
determination of return to prior conditions will be made by the Federal 
agency or appropriate state agency executing the agreement or permit. 
Before conducting any reversion activity the permittee or the 
appropriate Federal or state agency must notify the district engineer 
and include the documentation of the prior condition. Once an area has 
reverted to its prior physical condition, it will be subject to 
whatever the Corps Regulatory requirements will be at that future date. 
The requirement that the activity result in a net increase in aquatic 
resource functions and services does not apply to reversion activities 
meeting the above conditions. Except for the activities described 
above, this NWP does not authorize any future discharge of dredged or 
fill material associated with the reversion of the area to its prior 
condition. In such cases a separate permit would be required for any 
reversion.
    Reporting: For those activities that do not require pre-
construction notification, the permittee must submit to the district 
engineer a copy of: (1) The binding wetland enhancement, restoration, 
or establishment agreement; (2) the NRCS documentation for the 
voluntary wetland restoration, enhancement, or establishment action; or 
(3) the SMCRA permit issued by OSM or the applicable state agency. 
These documents must be submitted to the district engineer at least 30 
days prior to commencing activities in waters of the United States 
authorized by this NWP.
    Notification. Except as provided below, the permittee must submit a 
pre-construction notification to the district engineer prior to 
commencing the activity. (See general condition 27.)

[[Page 56289]]

Except for reversion activities, pre-construction notification is not 
required for:
    (1) Activities conducted on non-Federal public lands and private 
lands, in accordance with the terms and conditions of a binding wetland 
enhancement, restoration, or establishment agreement between the 
landowner and the U.S. FWS, NRCS, FSA, NMFS, NOS, or their designated 
state cooperating agencies;
    (2) Voluntary wetland restoration, enhancement, and establishment 
actions documented by the NRCS pursuant to NRCS regulations; or
    (3) The reclamation of surface coal mine lands, in accordance with 
an SMCRA permit issued by the OSM or the applicable state agency.
    However, the permittee should submit a copy of the appropriate 
documentation. (Sections 10 and 404.)


    Note: This NWP can be used to authorize compensatory mitigation 
projects, including mitigation banks and in-lieu fee programs. 
However, this NWP does not authorize the reversion of an area used 
for a compensatory mitigation project to its prior condition, since 
compensatory mitigation is generally intended to be permanent.


    28. Modifications of Existing Marinas. Reconfiguration of existing 
docking facilities within an authorized marina area. No dredging, 
additional slips, dock spaces, or expansion of any kind within waters 
of the United States is authorized by this NWP. (Section 10.)
    29. Residential Developments. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction or expansion of a single residence or a multiple unit 
residential development. This NWP authorizes the construction of 
building foundations and building pads and attendant features that are 
necessary for the use of the residence or residential development. 
Attendant features may include but are not limited to roads, parking 
lots, garages, yards, utility lines, storm water management facilities, 
septic fields, and recreation facilities such as playgrounds, playing 
fields, and golf courses (provided the golf course is an integral part 
of the residential development).
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds this 300 linear foot limit is waived in writing 
by the district engineer. This NWP does not authorize discharges into 
non-tidal wetlands adjacent to tidal waters.
    Subdivisions: For residential subdivisions, the aggregate total 
loss of waters of United States authorized by this NWP cannot exceed 
\1/2\ acre. This includes any loss of waters of the United States 
associated with development of individual subdivision lots.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Sections 10 and 404.)
    30. Moist Soil Management for Wildlife. Discharges of dredged or 
fill material into non-tidal waters of the United States and 
maintenance activities that are associated with moist soil management 
for wildlife for the purpose of continuing ongoing, site-specific, 
wildlife management activities where soil manipulation is used to 
manage habitat and feeding areas for wildlife. Such activities include, 
but are not limited to, plowing or discing to impede succession, 
preparing seed beds, or establishing fire breaks. Sufficient riparian 
areas must be maintained adjacent to all open water bodies, streams, 
etc., to preclude water quality degradation due to erosion and 
sedimentation. This NWP does not authorize the construction of new 
dikes, roads, water control structures, etc. associated with the 
management areas. The activity must not result in a net loss of aquatic 
resource functions and services. This NWP does not authorize the 
conversion of wetlands to uplands, impoundments or other open water 
bodies. (Section 404)


    Note: The repair, maintenance, or replacement of existing water 
control structures or the repair or maintenance of dikes may be 
authorized by NWP 3.


    31. Maintenance of Existing Flood Control Facilities. Discharges of 
dredged or fill material resulting from activities associated with the 
maintenance of existing flood control facilities, including debris 
basins, retention/detention basins, levees, and channels that: (i) Were 
previously authorized by the Corps by individual permit, general 
permit, by 33 CFR 330.3, or did not require a permit at the time they 
were constructed, or (ii) were constructed by the Corps and transferred 
to a non-Federal sponsor for operation and maintenance. Activities 
authorized by this NWP are limited to those resulting from maintenance 
activities that are conducted within the ``maintenance baseline,'' as 
described in the definition below. Activities, including the discharges 
of dredged or fill materials associated with maintenance activities in 
flood control facilities in any watercourse that have previously been 
determined to be within the maintenance baseline, are authorized under 
this NWP. This NWP does not authorize the removal of sediment and 
associated vegetation from the natural water courses except when these 
activities have been included in the maintenance baseline. All dredged 
material must be placed in an upland site or an authorized disposal 
site in waters of the United States, and proper siltation controls must 
be used.
    Maintenance Baseline: The maintenance baseline is a description of 
the physical characteristics (e.g., depth, width, length, location, 
configuration, or design flood capacity, etc.) of a flood control 
project within which maintenance activities are normally authorized by 
NWP 31, subject to any case-specific conditions required by the 
district engineer. The district engineer will approve the maintenance 
baseline based on the approved or constructed capacity of the flood 
control facility, whichever is smaller, including any areas where there 
are no constructed channels, but which are part of the facility. The 
prospective permittee will provide documentation of the physical 
characteristics of the flood control facility (which will normally 
consist of as-built or approved drawings) and documentation of the 
approved and constructed design capacities of the flood control 
facility. If no evidence of the constructed capacity exists, the 
approved capacity will be used. The documentation will also include 
best management practices to ensure that the impacts to the aquatic 
environment are minimal, especially in maintenance areas where there 
are no constructed channels. (The Corps may request maintenance records 
in areas where there has not been recent maintenance.) Revocation or 
modification of the final determination of the maintenance baseline can 
only be done in accordance with 33 CFR 330.5. Except in emergencies as 
described below, this NWP cannot be used until the district engineer 
approves the maintenance baseline and determines the need for 
mitigation and any regional or activity-specific conditions. Once 
determined, the maintenance baseline will remain valid for any 
subsequent reissuance of this NWP. This NWP does not authorize 
maintenance of a flood control facility that has been abandoned. A 
flood control facility will be considered abandoned if it has operated 
at a significantly reduced capacity without needed maintenance being 
accomplished in a timely manner.
    Mitigation: The district engineer will determine any required 
mitigation one-time only for impacts associated with maintenance work 
at the same time that

[[Page 56290]]

the maintenance baseline is approved. Such one-time mitigation will be 
required when necessary to ensure that adverse environmental impacts 
are no more than minimal, both individually and cumulatively. Such 
mitigation will only be required once for any specific reach of a flood 
control project. However, if one-time mitigation is required for 
impacts associated with maintenance activities, the district engineer 
will not delay needed maintenance, provided the district engineer and 
the permittee establish a schedule for identification, approval, 
development, construction and completion of any such required 
mitigation. Once the one-time mitigation described above has been 
completed, or a determination made that mitigation is not required, no 
further mitigation will be required for maintenance activities within 
the maintenance baseline. In determining appropriate mitigation, the 
district engineer will give special consideration to natural water 
courses that have been included in the maintenance baseline and require 
compensatory mitigation and/or best management practices as 
appropriate.
    Emergency Situations: In emergency situations, this NWP may be used 
to authorize maintenance activities in flood control facilities for 
which no maintenance baseline has been approved. Emergency situations 
are those which would result in an unacceptable hazard to life, a 
significant loss of property, or an immediate, unforeseen, and 
significant economic hardship if action is not taken before a 
maintenance baseline can be approved. In such situations, the 
determination of mitigation requirements, if any, may be deferred until 
the emergency has been resolved. Once the emergency has ended, a 
maintenance baseline must be established expeditiously, and mitigation, 
including mitigation for maintenance conducted during the emergency, 
must be required as appropriate.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer before any maintenance work is 
conducted (see general condition 27). The pre-construction notification 
may be for activity-specific maintenance or for maintenance of the 
entire flood control facility by submitting a five-year (or less) 
maintenance plan. The pre-construction notification must include a 
description of the maintenance baseline and the dredged material 
disposal site. (Sections 10 and 404.)
    32. Completed Enforcement Actions. Any structure, work, or 
discharge of dredged or fill material, remaining in place, or 
undertaken for mitigation, restoration, or environmental benefit in 
compliance with either:
    (i) The terms of a final written Corps non-judicial settlement 
agreement resolving a violation of Section 404 of the Clean Water Act 
and/or Section 10 of the Rivers and Harbors Act of 1899; or the terms 
of an EPA 309(a) order on consent resolving a violation of Section 404 
of the Clean Water Act, provided that:
    (a) The unauthorized activity affected no more than 5 acres of non-
tidal waters or 1 acre of tidal waters;
    (b) The settlement agreement provides for environmental benefits, 
to an equal or greater degree, than the environmental detriments caused 
by the unauthorized activity that is authorized by this NWP; and
    (c) The district engineer issues a verification letter authorizing 
the activity subject to the terms and conditions of this NWP and the 
settlement agreement, including a specified completion date; or
    (ii) The terms of a final Federal court decision, consent decree, 
or settlement agreement resulting from an enforcement action brought by 
the United States under Section 404 of the Clean Water Act and/or 
Section 10 of the Rivers and Harbors Act of 1899; or
    (iii) The terms of a final court decision, consent decree, 
settlement agreement, or non-judicial settlement agreement resulting 
from a natural resource damage claim brought by a trustee or trustees 
for natural resources (as defined by the National Contingency Plan at 
40 CFR subpart G) under Section 311 of the Clean Water Act, Section 107 
of the Comprehensive Environmental Response, Compensation and Liability 
Act, Section 312 of the National Marine Sanctuaries Act, Section 1002 
of the Oil Pollution Act of 1990, or the Park System Resource 
Protection Act at 16 U.S.C. 19jj, to the extent that a Corps permit is 
required.
    Compliance is a condition of the NWP itself. Any authorization 
under this NWP is automatically revoked if the permittee does not 
comply with the terms of this NWP or the terms of the court decision, 
consent decree, or judicial/non-judicial settlement agreement. This NWP 
does not apply to any activities occurring after the date of the 
decision, decree, or agreement that are not for the purpose of 
mitigation, restoration, or environmental benefit. Before reaching any 
settlement agreement, the Corps will ensure compliance with the 
provisions of 33 CFR part 326 and 33 CFR 330.6(d)(2) and (e). (Sections 
10 and 404.)
    33. Temporary Construction, Access, and Dewatering. Temporary 
structures, work and discharges, including cofferdams, necessary for 
construction activities or access fills or dewatering of construction 
sites, provided that the associated primary activity is authorized by 
the Corps of Engineers or the U.S. Coast Guard. This NWP also 
authorizes temporary structures, work and discharges, including 
cofferdams, necessary for construction activities not subject to the 
Corps or U.S. Coast Guard permit requirements. Appropriate measures 
must be taken to maintain near normal downstream flows and to minimize 
flooding. Fill must consist of materials, and be placed in a manner, 
that will not be eroded by expected high flows. The use of dredged 
material may be allowed if the district engineer determines that it 
will not cause more than minimal adverse effects on aquatic resources. 
Following completion of construction, temporary fill must be entirely 
removed to upland areas, dredged material must be returned to its 
original location, and the affected areas must be restored to the pre-
project conditions. Cofferdams cannot be used to dewater wetlands or 
other aquatic areas to change their use. Structures left in place after 
cofferdams are removed require a section 10 permit if located in 
navigable waters of the United States. (See 33 CFR part 322.)
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
(see general condition 27). The pre-construction notification must 
include a mitigation plan of reasonable measures to avoid and minimize 
adverse effects to aquatic resources. (Sections 10 and 404.)
    34. Cranberry Production Activities. Discharges of dredged or fill 
material for dikes, berms, pumps, water control structures or leveling 
of cranberry beds associated with expansion, enhancement, or 
modification activities at existing cranberry production operations. 
The cumulative total acreage of disturbance per cranberry production 
operation, including but not limited to, filling, flooding, ditching, 
or clearing, must not exceed 10 acres of waters of the United States, 
including wetlands. The activity must not result in a net loss of 
wetland acreage. This NWP does not authorize any discharge of dredged 
or fill material related to other cranberry production activities such 
as warehouses, processing facilities, or parking areas. For the 
purposes of this NWP, the cumulative total of 10 acres will be measured 
over the period that this NWP is valid.

[[Page 56291]]

    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
For an existing cranberry production operation, the pre-construction 
notification needs only to be submitted once during the period that 
this NWP is valid, and the NWP would authorize that existing operation, 
provided the 10-acre limit is not exceeded. (See general condition 27.) 
(Section 404.)
    35. Maintenance Dredging of Existing Basins. Excavation and removal 
of accumulated sediment for maintenance of existing marina basins, 
access channels to marinas or boat slips, and boat slips to previously 
authorized depths or controlling depths for ingress/egress, whichever 
is less, provided the dredged material is deposited at an upland site 
and proper siltation controls are used. (Section 10.)
    36. Boat Ramps. Activities required for the construction of boat 
ramps, provided the activity meets all of the following criteria:
    (a) The discharge into waters of the United States does not exceed 
50 cubic yards of concrete, rock, crushed stone or gravel into forms, 
or placement of pre-cast concrete planks or slabs, unless the 50 cubic 
yard limit is waived in writing by the district engineer;
    (b) The boat ramp does not exceed 20 feet in width, unless this 
criterion is waived in writing by the district engineer;
    (c) The base material is crushed stone, gravel or other suitable 
material;
    (d) The excavation is limited to the area necessary for site 
preparation and all excavated material is removed to the upland; and,
    (e) No material is placed in special aquatic sites, including 
wetlands.
    The use of unsuitable material that is structurally unstable is not 
authorized. If dredging in navigable waters of the United States is 
necessary to provide access to the boat ramp, the dredging may be 
authorized by another NWP, a regional general permit, or an individual 
permit.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
if: (1) The discharge into waters of the United States exceeds 50 cubic 
yards, or (2) the boat ramp exceeds 20 feet in width. (See general 
condition 27.) (Sections 10 and 404.)
    37. Emergency Watershed Protection and Rehabilitation. Work done by 
or funded by:
    (a) The Natural Resources Conservation Service for a situation 
requiring immediate action under its emergency Watershed Protection 
Program (7 CFR part 624); or
    (b) The U.S. Forest Service under its Burned-Area Emergency 
Rehabilitation Handbook (FSH 509.13); or
    (c) The Department of the Interior for wildland fire management 
burned area emergency stabilization and rehabilitation (DOI Manual part 
620, Ch. 3).
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity 
(see general condition 27). (Sections 10 and 404.)
    38. Cleanup of Hazardous and Toxic Waste. Specific activities 
required to effect the containment, stabilization, or removal of 
hazardous or toxic waste materials that are performed, ordered, or 
sponsored by a government agency with established legal or regulatory 
authority. Court ordered remedial action plans or related settlements 
are also authorized by this NWP. This NWP does not authorize the 
establishment of new disposal sites or the expansion of existing sites 
used for the disposal of hazardous or toxic waste.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Sections 10 and 404.)

    Note: Activities undertaken entirely on a Comprehensive 
Environmental Response, Compensation, and Liability Act (CERCLA) 
site by authority of CERCLA as approved or required by EPA, are not 
required to obtain permits under Section 404 of the Clean Water Act 
or Section 10 of the Rivers and Harbors Act.


    39. Commercial and Institutional Developments. Discharges of 
dredged or fill material into non-tidal waters of the United States for 
the construction or expansion of commercial and institutional building 
foundations and building pads and attendant features that are necessary 
for the use and maintenance of the structures. Attendant features may 
include, but are not limited to, roads, parking lots, garages, yards, 
utility lines, storm water management facilities, and recreation 
facilities such as playgrounds and playing fields. Examples of 
commercial developments include retail stores, industrial facilities, 
restaurants, business parks, and shopping centers. Examples of 
institutional developments include schools, fire stations, government 
office buildings, judicial buildings, public works buildings, 
libraries, hospitals, and places of worship. The construction of new 
golf courses, new ski areas, or oil and gas wells is not authorized by 
this NWP.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds this 300 linear foot limit is waived in writing 
by the district engineer. This NWP does not authorize discharges into 
non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Sections 10 and 404.)
    40. Agricultural Activities. Discharges of dredged or fill material 
into non-tidal waters of the United States for agricultural activities, 
including the construction of building pads for farm buildings. 
Authorized activities include the installation, placement, or 
construction of drainage tiles, ditches, or levees; mechanized land 
clearing; land leveling; the relocation of existing serviceable 
drainage ditches constructed in waters of the United States; and 
similar activities. This NWP does not authorize discharges into non-
tidal wetlands adjacent to tidal waters.
    This NWP also authorizes the construction of farm ponds in non-
tidal waters of the United States, excluding perennial streams, 
provided the farm pond is used solely for agricultural purposes. This 
NWP does not authorize the construction of aquaculture ponds.
    This NWP also authorizes discharges of dredged or fill material 
into non-tidal waters of the United States to relocate existing 
serviceable drainage ditches constructed in non-tidal streams.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters. This NWP 
does not authorize the relocation of greater than 300 linear feet of 
existing serviceable drainage ditches constructed in non-tidal streams, 
unless for drainage ditches constructed in intermittent and ephemeral 
streams, this 300 linear foot limit is waived in writing by the 
district engineer.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Section 404.)


    Note: Some discharges for agricultural activities may qualify 
for an exemption under Section 404(f) of the Clean Water Act (see 33 
CFR 323.4).


    41. Reshaping Existing Drainage Ditches. Discharges of dredged or 
fill material into non-tidal waters of the United States, excluding 
non-tidal

[[Page 56292]]

wetlands adjacent to tidal waters, to modify the cross-sectional 
configuration of currently serviceable drainage ditches constructed in 
waters of the United States, for the purpose of improving water 
quality. The reshaping of the ditch cannot increase drainage capacity 
beyond the original design capacity nor can it expand the area drained 
by the ditch as originally designed (i.e., the capacity of the ditch 
must be the same as originally designed and it cannot drain additional 
wetlands or other waters of the United States).
    This NWP does not authorize the relocation of drainage ditches 
constructed in waters of the United States; the location of the 
centerline of the reshaped drainage ditch must be approximately the 
same as the location of the centerline of the original drainage ditch. 
This NWP does not authorize stream channelization or stream relocation 
projects.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity, 
if more than 500 linear feet of drainage ditch will be reshaped. (See 
general condition 27.) (Section 404.)
    42. Recreational Facilities. Discharges of dredged or fill material 
into non-tidal waters of the United States for the construction or 
expansion of recreational facilities. Examples of recreational 
facilities that may be authorized by this NWP include playing fields 
(e.g., football fields, baseball fields), basketball courts, tennis 
courts, hiking trails, bike paths, golf courses, ski areas, horse 
paths, nature centers, and campgrounds (excluding recreational vehicle 
parks). This NWP also authorizes the construction or expansion of small 
support facilities, such as maintenance and storage buildings and 
stables that are directly related to the recreational activity, but it 
does not authorize the construction of hotels, restaurants, racetracks, 
stadiums, arenas, or similar facilities.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds this 300 linear foot limit is waived in writing 
by the district engineer. This NWP does not authorize discharges into 
non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) (Section 404.)
    43. Stormwater Management Facilities. Discharges of dredged or fill 
material into non-tidal waters of the United States for the 
construction and maintenance of stormwater management facilities, 
including activities for the excavation of stormwater ponds/facilities, 
detention basins, and retention basins; the installation and 
maintenance of water control structures, outfall structures and 
emergency spillways; and the maintenance dredging of existing 
stormwater management ponds/facilities and detention and retention 
basins.
    The discharge must not cause the loss of greater than \1/2\-acre of 
non-tidal waters of the United States, including the loss of no more 
than 300 linear feet of stream bed, unless for intermittent and 
ephemeral stream beds this 300 linear foot limit is waived in writing 
by the district engineer. This NWP does not authorize discharges into 
non-tidal wetlands adjacent to tidal waters. This NWP does not 
authorize discharges of dredged or fill material for the construction 
of new stormwater management facilities in perennial streams.
    Maintenance activities are limited to restoring the original design 
capacities of the stormwater management facility.
    Notification: For the construction of new stormwater management 
facilities, or the expansion of existing stormwater management 
facilities, the permittee must submit a pre-construction notification 
to the district engineer prior to commencing the activity. (See general 
condition 27.) (Section 404.)
    44. Mining Activities. Discharges of dredged or fill material into 
non-tidal waters of the United States for mining activities, except for 
coal mining activities. The discharge must not cause the loss of 
greater than \1/2\-acre of non-tidal wetlands. This NWP does not 
authorize discharges into non-tidal wetlands adjacent to tidal waters.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity. 
(See general condition 27.) If reclamation is required by other 
statutes, then a copy of the reclamation plan must be submitted with 
the pre-construction notification. (Sections 10 and 404.)
    A. Emergency Repair Activities. This NWP authorizes the repair, 
rehabilitation, or replacement of structures or fills destroyed or 
damaged by storms, floods, fire or other discrete events, provided the 
repair, rehabilitation, or replacement is commenced, or is under 
contract to commence, within two years of the date of their destruction 
or damage. In cases of catastrophic events, such as hurricanes or 
tornadoes, this two-year limit may be waived by the district engineer, 
provided the permittee can demonstrate funding, contract, or other 
similar delays.
    This NWP also authorizes discharges of dredged or fill material, 
including dredging or excavation, into all waters of the United States 
for activities associated with the restoration of upland areas damaged 
by storms, floods, or other discrete events. This NWP authorizes bank 
stabilization to protect the restored uplands. The restoration of the 
damaged areas, including any bank stabilization, must not exceed the 
contours, or ordinary high water mark, that existed before the damage 
occurred. The district engineer retains the right to determine the 
extent of the pre-existing conditions and the extent of any restoration 
work authorized by this NWP. The work must commence, or be under 
contract to commence, within two years of the date that a PCN is filed, 
unless this condition is waived by the district engineer. This NWP 
cannot be used to reclaim lands lost to normal erosion processes over 
an extended period.
    Minor dredging is limited to the amount necessary to restore the 
pre-existing bottom contours of the waterbody. If temporary structures 
and discharges, including cofferdams, are necessary to conduct the 
repair, rehabilitation, or replacement of structures or fills, separate 
authorization is required.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer (see general condition 27) within 
12-months of the date of the damage. The pre-construction notification 
should include documentation, such as a recent topographic survey or 
photographs, to justify the extent of the proposed restoration. 
(Sections 10 and 404.)


    Note: Uplands lost as a result of a storm, flood, or other 
discrete event can be replaced without a section 404 permit, if the 
uplands are restored to the ordinary high water mark (in non-tidal 
waters) or high tide line (in tidal waters). (See also 33 CFR 
328.5.)


    B. Discharges in Ditches and Canals. Discharges of dredged or fill 
material into ditches and canals that are constructed in uplands, 
receive water from another water of the United States, divert water to 
another water of the United States, and are determined to be waters of 
the United States. The discharge must not cause the loss of greater 
than one acre of waters of the United States. This NWP does not 
authorize discharges of dredged or fill material into ditches or canals 
constructed in streams or other waters

[[Page 56293]]

of the United States, or in streams that have been relocated in 
uplands.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer prior to commencing the activity, 
if the dredged or fill material will be discharged into more than 500 
linear feet of ditch or canal. (See general condition 27.) (Section 
404.)
    C. Pipeline Safety Program Designated Time Sensitive Inspections 
and Repairs. Activities required for the inspection, repair, 
rehabilitation, or replacement of any currently serviceable structure 
or fill for pipelines that have been identified by the Pipeline and 
Hazardous Materials Safety Administration's Pipeline Safety Program 
(PHP) within the U.S. Department of Transportation as time-sensitive 
(see 49 CFR parts 192 and 195) and additional maintenance activities 
done in conjunction with the time-sensitive inspection and repair 
activities. All activities must meet the following criteria:
    (a) Appropriate measures must be taken to maintain normal 
downstream flows and minimize flooding to the maximum extent 
practicable when temporary structures, work and discharges, including 
cofferdams, are necessary for construction activities or access fills 
or dewatering of construction sites;
    (b) Material resulting from trench excavation may be temporarily 
sidecast into waters of the United States for no more than three 
months, provided that the material is not placed in such a manner that 
it is dispersed by currents or other forces. The district engineer may 
extend the period of temporary side casting for no more than a total of 
180 days, where appropriate. The trench cannot be constructed or 
backfilled in such a manner as to drain waters of the United States 
(e.g., backfilling with extensive gravel layers, creating a french 
drain effect);
    (c) Temporary fill must consist of materials, and be placed in a 
manner, that will not be eroded by expected high flows. Temporary 
structures and fills must be removed upon completion of the activity 
and the affected areas returned to pre-construction conditions;
    (d) In wetlands, the top 6'' to 12'' of the trench should normally 
be backfilled with topsoil from the trench so that there is no change 
in preconstruction contours;
    (e) To the maximum extent practicable, the restoration of open 
waters must be to the pre-construction course, condition, capacity, and 
location of the waterbody;
    (f) Any exposed slopes and stream banks must be stabilized 
immediately upon completion of the project;
    (g) Additional maintenance activities done in conjunction with the 
time-sensitive inspection or repair must not result in additional 
losses of waters of the United States; and,
    (h) The permittee is a participant in the Pipeline Repair and 
Environmental Guidance System (PREGS).
    Reporting: The permittee must submit a post construction report to 
the PHP within seven days after completing the work. The report must be 
submitted electronically to PHP via PREGS. The report must contain the 
following information: project sites located in waters of the United 
States, temporary access routes, stream dewatering sites, temporary 
fills and temporary structures identified on a map of the pipeline 
corridor; photographs of the pre- and post-construction work areas 
located in waters of the United States; and a list of best management 
practices employed for each pipeline segment shown on the map. (Section 
10 and 404.)
    D. Commercial Shellfish Aquaculture Activities. This NWP authorizes 
the installation of buoys, floats, racks, trays, nets, lines, and other 
structures necessary for the continued operation of the aquaculture 
activity. This NWP also authorizes discharges of dredged or fill 
material necessary for shellfish seeding, rearing, cultivating, 
transplanting, and harvesting activities. Rafts and other floating 
structures must be securely anchored and clearly marked.
    This NWP does not authorize the expansion of the project area for 
the commercial shellfish aquaculture activity. This NWP does not 
authorize the cultivation of new species (i.e., species not previously 
cultivated by the existing commercial shellfish aquaculture activity).
    Notification: The permittee must submit a pre-construction 
notification to the district engineer if: (1) The project area is 
greater than 25 acres; (2) more than 10 acres of the project area is 
occupied by submerged aquatic vegetation; (3) the permittee intends to 
relocate existing operations into portions of the project area not 
previously used for aquaculture activities; or (4) dredge harvesting is 
conducted in areas inhabited by submerged aquatic vegetation. (See 
general condition 27.) (Sections 10 and 404.)


    Note: The permittee should notify the applicable U.S. Coast 
Guard office regarding the project.


    E. Coal Remining Activities. Discharges of dredged or fill material 
into non-tidal waters of the United States associated with the remining 
and reclamation of lands that were previously mined for coal, provided 
the activities are already authorized by the Department of Interior 
(DOI), Office of Surface Mining (OSM), or by states with approved 
programs under Title V of the Surface Mining Control and Reclamation 
Act of 1977 or are currently being processed as part of an integrated 
permit processing procedure. Areas previously disturbed by mining 
activities include reclaimed mine sites, abandoned mine land areas, or 
lands under bond forfeiture contracts. The permittee must clearly 
demonstrate to the district engineer that the reclamation plan will 
result in a net increase in aquatic resource functions. As part of the 
project, the permittee may conduct coal mining activities in an 
adjacent area, provided the newly mined area is less than 40 percent of 
the area being remined and reclaimed.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer and receive written authorization 
prior to commencing the activity. (See general condition 27.) (Sections 
10 and 404.)
    F. Underground Coal Mining Activities. Discharges of dredged or 
fill material into non-tidal waters of the United States associated 
with underground coal mining and reclamation operations provided the 
activities are authorized by the Department of Interior (DOI), Office 
of Surface Mining (OSM), or by states with approved programs under 
Title V of the Surface Mining Control and Reclamation Act of 1977 or 
are currently being processed as part of an integrated permit 
processing procedure.
    The discharge must not cause the loss of greater than 1/2 acre of 
non-tidal waters of the United States. This NWP does not authorize 
discharges into non-tidal wetlands adjacent to tidal waters. This NWP 
does not authorize coal preparation and processing activities outside 
of the mine site.
    Notification: The permittee must submit a pre-construction 
notification to the district engineer. (See general condition 27.) If 
reclamation is required by other statutes, then a copy of the 
reclamation plan must be submitted with the pre-construction 
notification. (Sections 10 and 404.)


    Note: Coal preparation and processing activities outside of the 
mine site may be authorized by NWP 21.


[[Page 56294]]



C. Nationwide Permit General Conditions

    Note: To qualify for NWP authorization, the prospective 
permittee must comply with the following general conditions, as 
appropriate, in addition to any regional or case-specific conditions 
imposed by the division engineer or district engineer. Prospective 
permittees should contact the appropriate Corps district office to 
determine if regional conditions have been imposed on an NWP. 
Prospective permittees should also contact the appropriate Corps 
district office to determine the status of Clean Water Act Section 
401 water quality certification and/or Coastal Zone Management Act 
consistency for an NWP.


    1. Navigation. (a) No activity may cause more than a minimal 
adverse effect on navigation.
    (b) Any safety lights and signals prescribed by the U.S. Coast 
Guard, through regulations or otherwise, must be installed and 
maintained at the permittee's expense on authorized facilities in 
navigable waters of the United States.
    (c) The permittee understands and agrees that, if future operations 
by the United States require the removal, relocation, or other 
alteration, of the structure or work herein authorized, or if, in the 
opinion of the Secretary of the Army or his authorized representative, 
said structure or work shall cause unreasonable obstruction to the free 
navigation of the navigable waters, the permittee will be required, 
upon due notice from the Corps of Engineers, to remove, relocate, or 
alter the structural work or obstructions caused thereby, without 
expense to the United States. No claim shall be made against the United 
States on account of any such removal or alteration.
    2. Aquatic Life Movements. No activity may substantially disrupt 
the necessary life cycle movements, if known, of those species of 
aquatic life indigenous to the waterbody, including those species that 
normally migrate through the area, unless the activity's primary 
purpose is to impound water. Culverts placed in streams must be 
installed to maintain low flow conditions.
    3. Spawning Areas. Activities in spawning areas during spawning 
seasons must be avoided to the maximum extent practicable. Activities 
that result in the physical destruction (e.g., excavate, fill, or 
smother downstream by substantial turbidity) of an important spawning 
area are not authorized.
    4. Migratory Bird Breeding Areas. Activities in waters of the 
United States that serve as breeding areas for migratory birds must be 
avoided to the maximum extent practicable.
    5. Shellfish Beds. No activity may occur in areas of concentrated 
shellfish populations, unless the activity is directly related to a 
shellfish harvesting activity authorized by NWPs 4 and D.
    6. Suitable Material. No activity may use unsuitable material 
(e.g., trash, debris, car bodies, asphalt, etc.). Material used for 
construction or discharged must be free from toxic pollutants in toxic 
amounts (see Section 307 of the Clean Water Act).
    7. Water Supply Intakes. No activity may occur in the proximity of 
a public water supply intake, except where the activity is for the 
repair or improvement of public water supply intake structures or 
adjacent bank stabilization.
    8. Adverse Effects From Impoundments. If the activity creates an 
impoundment of water, adverse effects to the aquatic system due to 
accelerating the passage of water, and/or restricting its flow must be 
minimized to the maximum extent practicable.
    9. Management of Water Flows. To the maximum extent practicable, 
the pre-construction course, condition, capacity, and location of open 
waters must be maintained for each activity, including stream 
channelization and storm water management activities, except as 
provided below. The activity must be constructed to withstand expected 
high flows. The activity must not restrict or impede the passage of 
normal or high flows, unless the primary purpose of the activity is to 
impound water. The activity may alter the pre-construction course, 
condition, capacity, and location of open waters if it benefits the 
aquatic environment (e.g., stream restoration or relocation 
activities).
    10. Fills Within 100-Year Floodplains. The activity must comply 
with any applicable FEMA-approved state or local floodplain management 
requirements.
    11. Equipment. Heavy equipment working in wetlands or mudflats must 
be placed on mats, or other measures must be taken to minimize soil 
disturbance.
    12. Soil Erosion and Sediment Controls. Appropriate soil erosion 
and sediment controls must be used and maintained in effective 
operating condition during construction, and all exposed soil and other 
fills, as well as any work below the ordinary high water mark or high 
tide line, must be permanently stabilized at the earliest practicable 
date. Permittees are encouraged to perform work within waters of the 
United States during periods of low-flow or no-flow.
    13. Removal of Temporary Fills. Temporary fills must be removed in 
their entirety and the affected areas returned to pre-construction 
conditions.
    14. Proper Maintenance. Any authorized structure or fill shall be 
properly maintained, including maintenance to ensure public safety.
    15. Wild and Scenic Rivers. No activity may occur in a component of 
the National Wild and Scenic River System, or in a river officially 
designated by Congress as a ``study river'' for possible inclusion in 
the system while the river is in an official study status, unless the 
appropriate Federal agency with direct management responsibility for 
such river, has determined in writing that the proposed activity will 
not adversely affect the Wild and Scenic River designation or study 
status. Information on Wild and Scenic Rivers may be obtained from the 
appropriate Federal land management agency in the area (e.g., National 
Park Service, U.S. Forest Service, Bureau of Land Management, U.S. Fish 
and Wildlife Service).
    16. Tribal Rights. No activity or its operation may impair reserved 
tribal rights, including, but not limited to, reserved water rights and 
treaty fishing and hunting rights.
    17. Endangered Species. (a) No activity is authorized under any NWP 
which is likely to jeopardize the continued existence of a threatened 
or endangered species or a species proposed for such designation, as 
identified under the Federal Endangered Species Act (ESA), or which 
will destroy or adversely modify the critical habitat of such species. 
No activity is authorized under any NWP which ``may affect'' a listed 
species or critical habitat, unless Section 7 consultation addressing 
the effects of the proposed activity has been completed.
    (b) Non-federal permittees shall notify the district engineer if 
any listed species or designated critical habitat might be affected or 
is in the vicinity of the project, or if the project is located in 
designated critical habitat, and shall not begin work on the activity 
until notified by the district engineer that the requirements of the 
ESA have been satisfied and that the activity is authorized. For 
activities that may affect Federally-listed endangered or threatened 
species or designated critical habitat, the pre-construction 
notification must include the name(s) of the endangered or threatened 
species that may be affected by the proposed work or that utilize the 
designated critical habitat that may be affected by the proposed work. 
The district engineer will determine whether the proposed

[[Page 56295]]

activity ``may affect'' or will have ``no effect'' to listed species 
and designated critical habitat and will notify the applicant of the 
Corps' determination within 45 days of receipt of a complete pre-
construction notification. Applicants shall not begin work until the 
Corps has provided notification the proposed activities will have ``no 
effect'' on listed species or critical habitat, or until Section 7 
consultation has been completed.
    (c) As a result of formal or informal consultation with the FWS or 
NMFS the district engineer may add species-specific regional endangered 
species conditions to the NWPs.
    (d) Authorization of an activity by a NWP does not authorize the 
``take'' of a threatened or endangered species as defined under the 
ESA. In the absence of separate authorization (e.g., an ESA Section 10 
Permit, a Biological Opinion with ``incidental take'' provisions, etc.) 
from the U.S. FWS or the NMFS, both lethal and non-lethal ``takes'' of 
protected species are in violation of the ESA. Information on the 
location of threatened and endangered species and their critical 
habitat can be obtained directly from the offices of the U.S. FWS and 
NMFS or their world wide Web pages at http://www.fws.gov/ and http://www.noaa.gov/fisheries.html respectively.
    18. Historic Properties. (a) No activity which may affect historic 
properties listed, or eligible for listing, in the National Register of 
Historic Places is authorized, until the district engineer has complied 
with the current procedures for addressing the requirements of Section 
106 of the National Historic Preservation Act (NHPA).
    (b) The prospective permittee must notify the district engineer if 
the authorized activity may affect any historic properties listed, 
determined to be eligible, or which the prospective permittee has 
reason to believe may be eligible for listing on the National Register 
of Historic Places, and shall not begin the activity until notified by 
the district engineer that the requirements of the NHPA have been 
satisfied and that the activity is authorized. The district engineer 
will notify the permittee within 45 days of receipt of a complete pre-
construction notification whether NHPA section 106 consultation is 
required. If NHPA section 106 consultation is required and will occur 
under the NWP process, the district engineer will notify the permittee 
that he or she cannot begin work until consultation is completed.
    (c) Information on the location and existence of historic resources 
can be obtained from the State Historic Preservation Officer or Tribal 
Historic Preservation Officer, as appropriate, and the National 
Register of Historic Places (see 33 CFR 330.4(g)). For activities that 
may affect historic properties listed in, or eligible for listing in, 
the National Register of Historic Places, the pre-construction 
notification must state which historic property may be affected by the 
proposed work or include a vicinity map indicating the location of the 
historic property.
    19. Designated Critical Resource Waters. Critical resource waters 
include, NOAA-designated marine sanctuaries, National Estuarine 
Research Reserves, state natural heritage sites, and outstanding 
national resource waters or other waters officially designated by a 
state as having particular environmental or ecological significance and 
identified by the district engineer after notice and opportunity for 
public comment. The district engineer may also designate additional 
critical resource waters after notice and opportunity for comment.
    (a) Discharges of dredged or fill material into waters of the 
United States are not authorized by NWPs 7, 12, 14, 16, 17, 21, 29, 31, 
35, 39, 40, 42, 43, and 44 for any activity within, or directly 
affecting, critical resource waters, including wetlands adjacent to 
such waters.
    (b) For NWPs 3, 8, 10, 13, 15, 18, 19, 22, 23, 25, 27, 28, 30, 33, 
34, 36, 37, and 38, notification is required in accordance with general 
condition 27, for any activity proposed in the designated critical 
resource waters including wetlands adjacent to those waters. The 
district engineer may authorize activities under these NWPs only after 
it is determined that the impacts to the critical resource waters will 
be no more than minimal.
    20. Mitigation. The district engineer will consider the following 
factors when determining appropriate and practicable mitigation 
necessary to ensure that adverse effects on the aquatic environment are 
minimal:
    (a) The activity must be designed and constructed to avoid and 
minimize adverse effects, both temporary and permanent, to waters of 
the United States to the maximum extent practicable at the project site 
(i.e., on site).
    (b) Mitigation in all its forms (avoiding, minimizing, rectifying, 
reducing, or compensating) will be required to the extent necessary to 
ensure that the adverse effects to the aquatic environment are minimal.
    (c) Compensatory mitigation at a minimum one-for-one ratio will be 
required for all wetland losses that exceed \1/10\ acre and require 
pre-construction notification, unless the district engineer determines 
in writing that some other form of mitigation would be more 
environmentally appropriate and provides a project-specific waiver of 
this requirement. For wetland losses of \1/10\ acre or less that 
require pre-construction notification, the district engineer may 
determine on a case-by-case basis that compensatory mitigation is 
required to ensure that the activity result in minimal adverse effects 
on the aquatic environment. Since the likelihood of success is greater 
and the impacts to potentially valuable uplands are reduced, wetland 
restoration should be the first compensatory mitigation option 
considered.
    (d) Compensatory mitigation will not be used to increase the 
acreage losses allowed by the acreage limits of the NWPs. For example, 
if an NWP has an acreage limit of \1/2\ acre, it cannot be used to 
authorize any project with greater than \1/2\ acre of loss of waters, 
even if mitigation is provided that replaces or restores some of the 
lost waters. However, compensatory mitigation can and should be used, 
as necessary, to ensure that a project already meeting the established 
acreage limits also satisfies the minimal impact requirement associated 
with NWPs.
    (e) Compensatory mitigation plans for projects in or near streams 
or other open waters will normally include a requirement for the 
establishment, maintenance, and legal protection (e.g., conservation 
easements) of riparian areas next to open waters. In some cases, 
riparian areas may be the only compensatory mitigation required. 
Riparian areas should consist of native species. The width of the 
required riparian area will address documented water quality or aquatic 
habitat loss concerns. Normally, the riparian area will be 25 to 50 
feet wide on each side of the stream, but the district engineer may 
require slightly wider riparian areas to address documented water 
quality or habitat loss concerns. Where both wetlands and open waters 
exist on the project site, the district engineer will determine the 
appropriate compensatory mitigation (e.g., riparian areas or wetlands 
compensation) based on what is best for the aquatic environment on a 
watershed basis. In cases where riparian areas are determined to be the 
most appropriate form of compensatory mitigation, the district engineer 
may waive or reduce the requirement to provide wetland compensatory 
mitigation for wetland losses.

[[Page 56296]]

    (f) Permittees may propose the use of mitigation banks, in-lieu fee 
arrangements or separate activity-specific compensatory mitigation. In 
those cases, the mitigation provisions will specify the party 
responsible for accomplishing and/or complying with the mitigation 
plan.
    (g) Where certain functions and services of waters of the United 
States are permanently adversely affected, such as the conversion of a 
forested or scrub-shrub wetland to a herbaceous wetland in a 
permanently maintained utility line right-of-way, mitigation may be 
required to reduce the adverse effects of the project to the minimal 
level.
    21. Water Quality. Where States and authorized Tribes, or EPA where 
applicable, have not previously certified compliance of an NWP with CWA 
Section 401, individual 401 Water Quality Certification must be 
obtained or waived (see 33 CFR 330.4(c)). The district engineer or 
State or Tribe may require additional water quality management measures 
to ensure that the authorized activity does not result in more than 
minimal degradation of water quality.
    22. Coastal Zone Management. In coastal states where an NWP has not 
previously received a state coastal zone management consistency 
concurrence, an individual state coastal zone management consistency 
concurrence must be obtained or waived (see 33 CFR 330.4(d)). The 
district engineer or a State may require additional measures to ensure 
that the authorized activity is consistent with state coastal zone 
management requirements.
    23. Regional and Case-By-Case Conditions. The activity must comply 
with any regional conditions that may have been added by the Division 
Engineer (see 33 CFR 330.4(e)) and with any case specific conditions 
added by the Corps or by the state, Indian Tribe, or U.S. EPA in its 
section 401 Water Quality Certification, or by the state in its Coastal 
Zone Management Act consistency determination.
    24. Use of Multiple Nationwide Permits. The use of more than one 
NWP for a single and complete project is prohibited, except when the 
acreage loss of waters of the United States authorized by the NWPs does 
not exceed the acreage limit of the NWP with the highest specified 
acreage limit. For example, if a road crossing over tidal waters is 
constructed under NWP 14, with associated bank stabilization authorized 
by NWP 13, the maximum acreage loss of waters of the United States for 
the total project cannot exceed \1/3\-acre.
    25. Transfer of Nationwide Permit Verifications. If the permittee 
sells the property associated with a nationwide permit verification, 
the permittee may transfer the nationwide permit verification to the 
new owner by submitting a letter to the appropriate Corps district 
office to validate the transfer. A copy of the nationwide permit 
verification must be attached to the letter, and the letter must 
contain the following statement and signature:

    <bullet> ``When the structures or work authorized by this 
nationwide permit are still in existence at the time the property is 
transferred, the terms and conditions of this nationwide permit, 
including any special conditions, will continue to be binding on the 
new owner(s) of the property. To validate the transfer of this 
nationwide permit and the associated liabilities associated with 
compliance with its terms and conditions, have the transferee sign 
and date below.''

----------------------------------------------------------------

(Transferee)

----------------------------------------------------------------

(Date)

    26. Compliance Certification. Each permittee who received an NWP 
verification from the Corps must submit a signed certification 
regarding the completed work and any required mitigation. The 
certification form must be forwarded by the Corps with the NWP 
verification letter and will include:
    (a) A statement that the authorized work was done in accordance 
with the NWP authorization, including any general or specific 
conditions;
    (b) A statement that any required mitigation was completed in 
accordance with the permit conditions; and
    (c) The signature of the permittee certifying the completion of the 
work and mitigation.
    27. Pre-Construction Notification.
    (a) Timing. Where required by the terms of the NWP, the prospective 
permittee must notify the district engineer by submitting a pre-
construction notification (PCN) as early as possible. The district 
engineer must determine if the PCN is complete within 30 days of the 
date of receipt and can request additional information necessary to 
make the PCN complete only once. However, if the prospective permittee 
does not provide all of the requested information, then the district 
engineer will notify the prospective permittee that the PCN is still 
incomplete and the PCN review process will not commence until all of 
the requested information has been received by the district engineer. 
The prospective permittee shall not begin the activity:
    (1) Until notified in writing by the district engineer that the 
activity may proceed under the NWP with any special conditions imposed 
by the district or division engineer; or
    (2) If 45 days have passed from the district engineer's receipt of 
the complete PCN and the prospective permittee has not received written 
notice from the District or Division Engineer. However, the permittee 
cannot begin the activity until any consultation required under Section 
7 of the Endangered Species Act (see 33 CFR 330.4(f) and general 
condition 17) and/or Section 106 of the National Historic Preservation 
(see 33 CFR 330.4(g) and general condition 18) is completed. Also, work 
cannot begin under NWP 21 until the permittee has received written 
approval from the Corps. If the District or Division Engineer notifies 
the permittee in writing that an individual permit is required within 
45 days of receipt of a complete PCN, the permittee cannot begin the 
activity until an individual permit has been obtained. Subsequently, 
the permittee's right to proceed under the NWP may be modified, 
suspended, or revoked only in accordance with the procedure set forth 
in 33 CFR 330.5(d)(2).
    (b) Contents of Pre-Construction Notification: The PCN must be in 
writing and include the following information:
    (1) Name, address and telephone numbers of the prospective 
permittee;
    (2) Location of the proposed project;
    (3) A description of the proposed project; the project's purpose; 
direct and indirect adverse environmental effects the project would 
cause; any other NWP(s), regional general permit(s), or individual 
permit(s) used or intended to be used to authorize any part of the 
proposed project or any related activity. The description should be 
sufficiently detailed to allow the district engineer to determine that 
the adverse effects of the project will be minimal and any necessary 
compensatory mitigation. Sketches should be provided when necessary to 
show that the activity complies with the terms of the NWP. (Sketches 
usually clarify the project and when provided result in a quicker 
decision.);
    (4) The PCN must include a delineation of special aquatic sites and 
other waters of the United States on the project site. Wetland 
delineations must be prepared in accordance with the current method 
required by the Corps. The permittee may ask the Corps to delineate the 
special aquatic sites and other waters of the United States, but there 
may be a delay if the Corps does the delineation, especially if the 
project site is large or contains many wetland areas. Furthermore, the 
45 day period

[[Page 56297]]

will not start until the delineation has been completed and submitted 
to the Corps, where appropriate;
    (5) If the proposed activity will result in the loss of greater 
than 1/10 acre of wetlands and a PCN is required, the prospective 
permittee must submit a statement describing how the mitigation 
requirement will be satisfied.
    (6) For an activity that may adversely affect Federally-listed 
endangered or threatened species, the PCN must include the name(s) of 
those endangered or threatened species that may be affected by the 
proposed work or utilize the designated critical habitat that may be 
affected by the proposed work; and
    (7) For an activity that may affect a historic property listed in, 
or eligible for listing in, the National Register of Historic Places, 
the PCN must state which historic property may be affected by the 
proposed work or include a vicinity map indicating the location of the 
historic property.
    (c) Form of Pre-Construction Notification: The standard individual 
permit application form (Form ENG 4345) may be used, but the completed 
application form must clearly indicate that it is a PCN and must 
include all of the information required in paragraphs (b)(1) through 
(7) of this general condition. A letter containing the required 
information may also be used.
    (d) Agency Coordination: The district engineer will consider any 
comments from Federal and state agencies concerning the proposed 
activity's compliance with the terms and conditions of the NWPs and the 
need for mitigation to reduce the project's adverse environmental 
effects to a minimal level.
    For activities requiring pre-construction notification to the 
district engineer that result in the loss of greater than \1/2\-acre of 
waters of the United States, the district engineer will immediately 
provide (e.g., via facsimile transmission, overnight mail, or other 
expeditious manner) a copy of the PCN to the appropriate Federal or 
state offices (U.S. FWS, state natural resource or water quality 
agency, EPA, State Historic Preservation Officer (SHPO) or Tribal 
Historic Preservation Office (THPO), and, if appropriate, the NMFS). 
With the exception of NWP 37, these agencies will then have 10 calendar 
days from the date the material is transmitted to telephone or fax the 
district engineer notice that they intend to provide substantive, site-
specific comments. If so contacted by an agency, the district engineer 
will wait an additional 15 calendar days before making a decision on 
the pre-construction notification. The district engineer will fully 
consider agency comments received within the specified time frame, but 
will provide no response to the resource agency, except as provided 
below. The district engineer will indicate in the administrative record 
associated with each pre-construction notification that the resource 
agencies' concerns were considered. For NWP 37, the emergency watershed 
protection and rehabilitation activity may proceed immediately and the 
district engineer will consider any comments received to decide whether 
the NWP 37 authorization should be modified, suspended, or revoked in 
accordance with the procedures at 33 CFR 330.5.
    As required by Section 305(b)(4)(B) of the Magnuson-Stevens Fishery 
Conservation and Management Act, the district engineer will provide a 
response to NMFS within 30 days of receipt of any Essential Fish 
Habitat conservation recommendations.
    Applicants are encouraged to provide the Corps multiple copies of 
pre-construction notifications to expedite agency coordination.
    (e) District Engineer's Decision: In reviewing the PCN for the 
proposed activity, the district engineer will determine whether the 
activity authorized by the NWP will result in more than minimal 
individual or cumulative adverse environmental effects or may be 
contrary to the public interest. If the proposed activity will result 
in a loss of greater than 1/10 acre of wetlands, the prospective 
permittee should submit a proposed mitigation plan with the PCN. 
Applicants may also propose compensatory mitigation for projects with 
smaller impacts. The district engineer will consider any proposed 
compensatory mitigation the applicant has included in the proposal in 
determining whether the net adverse environmental effects to the 
aquatic environment of the proposed work are minimal. The compensatory 
mitigation proposal may be either conceptual or detailed. If the 
district engineer determines that the activity complies with the terms 
and conditions of the NWP and that the adverse effects on the aquatic 
environment are minimal, after considering mitigation, the district 
engineer will notify the permittee and include any conditions the 
district engineer deems necessary. The district engineer must approve 
any compensatory mitigation proposal before the permittee commences 
work. If the prospective permittee elects to submit a compensatory 
mitigation plan with the PCN, the district engineer will expeditiously 
review the proposed compensatory mitigation plan. The district engineer 
must review the plan within 45 days of receiving a complete PCN and 
determine whether the proposed mitigation would ensure no more than 
minimal adverse effects on the aquatic environment. If the net adverse 
effects of the project on the aquatic environment (after consideration 
of the compensatory mitigation proposal) are determined by the district 
engineer to be minimal, the district engineer will provide a timely 
written response to the applicant. The response will state that the 
project can proceed under the terms and conditions of the NWP.
    If the district engineer determines that the adverse effects of the 
proposed work are more than minimal, then the district engineer will 
notify the applicant either: (1) That the project does not qualify for 
authorization under the NWP and instruct the applicant on the 
procedures to seek authorization under an individual permit; (2) that 
the project is authorized under the NWP subject to the applicant's 
submission of a mitigation proposal that would reduce the adverse 
effects on the aquatic environment to the minimal level; or (3) that 
the project is authorized under the NWP with specific modifications or 
conditions. Where the district engineer determines that mitigation is 
required to ensure no more than minimal adverse effects occur to the 
aquatic environment, the activity will be authorized within the 45-day 
PCN period. The authorization will include the necessary conceptual or 
specific mitigation or a requirement that the applicant submit a 
mitigation proposal that would reduce the adverse effects on the 
aquatic environment to the minimal level. When mitigation is required, 
no work in waters of the United States may occur until the district 
engineer has approved a specific mitigation plan.

D. Further Information

    1. District Engineers have authority to determine if an activity 
complies with the terms and conditions of an NWP.
    2. NWPs do not obviate the need to obtain other federal, state, or 
local permits, approvals, or authorizations required by law.
    3. NWPs do not grant any property rights or exclusive privileges.
    4. NWPs do not authorize any injury to the property or rights of 
others.
    5. NWPs do not authorize interference with any existing or proposed 
Federal project.

E. Definitions

    Best management practices (BMPs): Policies, practices, procedures, 
or structures implemented to mitigate the

[[Page 56298]]

adverse environmental effects on surface water quality resulting from 
development. BMPs are categorized as structural or non-structural.
    Compensatory mitigation: The restoration, establishment, 
enhancement, or preservation of aquatic resources for the purpose of 
compensating for unavoidable adverse impacts which remain after all 
appropriate and practicable avoidance and minimization has been 
achieved.
    Currently serviceable: Useable as is or with some maintenance, but 
not so degraded as to essentially require reconstruction.
    Enhancement: The manipulation of the physical, chemical, or 
biological characteristics of an aquatic resource to heighten, 
intensify, or improve a specific aquatic resource function(s). 
Enhancement results in the gain of selected aquatic resource 
function(s), but may also lead to a decline in other aquatic resource 
function(s). Enhancement does not result in a gain in aquatic resource 
area.
    Ephemeral stream: An ephemeral stream has flowing water only 
during, and for a short duration after, precipitation events in a 
typical year. Ephemeral stream beds are located above the water table 
year-round. Groundwater is not a source of water for the stream. Runoff 
from rainfall is the primary source of water for stream flow.
    Establishment (creation): The manipulation of the physical, 
chemical, or biological characteristics present to develop an aquatic 
resource that did not previously exist at an upland or deepwater site. 
Establishment results in a gain in aquatic resource area.
    Independent utility: A test to determine what constitutes a single 
and complete project in the Corps regulatory program. A project is 
considered to have independent utility if it would be constructed 
absent the construction of other projects in the project area. Portions 
of a multi-phase project that depend upon other phases of the project 
do not have independent utility. Phases of a project that would be 
constructed even if the other phases were not built can be considered 
as separate single and complete projects with independent utility.
    Intermittent stream: An intermittent stream has flowing water 
during certain times of the year, when groundwater provides water for 
stream flow. During dry periods, intermittent streams may not have 
flowing water. Runoff from rainfall is a supplemental source of water 
for stream flow.
    Loss of waters of the United States: Waters of the United States 
that include the filled area and other waters that are permanently 
adversely affected by flooding, excavation, or drainage because of the 
regulated activity. Permanent adverse effects include permanent 
discharges of dredged or fill material that change an aquatic area to 
dry land, increase the bottom elevation of a waterbody, or change the 
use of a waterbody. The acreage of loss of waters of the United States 
is a threshold measurement of the impact to existing waters for 
determining whether a project may qualify for an NWP; it is not a net 
threshold that is calculated after considering compensatory mitigation 
that may be used to offset losses of aquatic functions and services. 
The loss of stream bed includes the linear feet of stream bed that is 
filled or excavated. Waters of the United States temporarily filled, 
flooded, excavated, or drained, but restored to preconstruction 
contours and elevations after construction, are not included in the 
measurement of loss of waters of the United States. Impacts resulting 
from activities eligible for exemptions under Section 404(f) of the 
Clean Water Act are not considered when calculating the loss of waters 
of the United States.
    Non-tidal wetland: A non-tidal wetland is a wetland (i.e., a water 
of the United States) that is not subject to the ebb and flow of tidal 
waters. The definition of a wetland can be found at 33 CFR 328.3(b). 
Non-tidal wetlands contiguous to tidal waters are located landward of 
the high tide line (i.e., spring high tide line).
    Open water: For purposes of the NWPs, an open water is any area 
that in a year with normal patterns of precipitation has water flowing 
or standing above ground to the extent that an ordinary high water mark 
(OHWM) can be determined. An OHWM is a line on the shore established by 
the fluctuations of water and indicated by physical characteristics or 
other appropriate means that consider the characteristics of the 
surrounding areas (see 33 CFR 328.3(e)). Aquatic vegetation within the 
area of standing or flowing water is either non-emergent, sparse, or 
absent. Vegetated shallows are considered to be open waters. Examples 
of ``open waters'' include rivers, streams, lakes, and ponds.
    Perennial stream: A perennial stream has flowing water year-round 
during a typical year. The water table is located above the stream bed 
for most of the year. Groundwater is the primary source of water for 
stream flow. Runoff from rainfall is a supplemental source of water for 
stream flow.
    Practicable: Available and capable of being done after taking into 
consideration cost, existing technology, and logistics in light of 
overall project purposes.
    Pre-construction notification: A request submitted by the project 
proponent to the Corps for confirmation that a particular activity is 
authorized by nationwide permit. The request may be a permit 
application, letter, or similar document that includes information 
about the proposed work and its anticipated environmental effects. Pre-
construction notification may be required by the terms and conditions 
of a nationwide permit, or by regional conditions. A pre-construction 
notification may be voluntarily submitted in cases where pre-
construction notification is not required and the project proponent 
wants confirmation that the activity is authorized by nationwide 
permit.
    Preservation: The removal of a threat to, or preventing the decline 
of, aquatic resources by an action in or near those aquatic resources. 
This term includes activities commonly associated with the protection 
and maintenance of aquatic resources through the implementation of 
appropriate legal and physical mechanisms. Preservation does not result 
in a gain of aquatic resource area or functions.
    Re-establishment: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and 
results in a gain in aquatic resource area.
    Rehabilitation: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of repairing 
natural/historic functions to a degraded aquatic resource. 
Rehabilitation results in a gain in aquatic resource function, but does 
not result in a gain in aquatic resource area.
    Restoration: The manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning 
natural/historic functions to a former or degraded aquatic resource. 
For the purpose of tracking net gains in aquatic resource area, 
restoration is divided into two categories: re-establishment and 
rehabilitation.
    Riffle and pool complex: Riffle and pool complexes are special 
aquatic sites under the 404(b)(1) Guidelines. Riffle and pool complexes 
sometimes characterize steep gradient sections of streams. Such stream 
sections are recognizable by their hydraulic characteristics. The rapid 
movement of water over a course substrate in riffles results in a rough 
flow, a turbulent surface, and high dissolved oxygen levels in the 
water. Pools are deeper

[[Page 56299]]

areas associated with riffles. A slower stream velocity, a streaming 
flow, a smooth surface, and a finer substrate characterize pools.
    Riparian areas: Riparian areas are lands adjacent to a waterbody. 
Riparian areas are transitional between terrestrial and aquatic 
ecosystems, through which surface and subsurface hydrology connects 
waterbodies with their adjacent uplands. Riparian areas are adjacent to 
streams, lakes, and estuarine-marine shorelines and provide a variety 
of ecological functions and services and help improve or maintain local 
water quality. (See general condition 20.)
    Single and complete project: The term ``single and complete 
project'' is defined at 33 CFR 330.2(i) as the total project proposed 
or accomplished by one owner/developer or partnership or other 
association of owners/developers (see definition of independent 
utility). For linear projects, the ``single and complete project'' 
(i.e., a single and complete crossing) will apply to each crossing of a 
separate water of the United States (i.e., a single waterbody) at that 
location. An exception is for linear projects crossing a single 
waterbody several times at separate and distant locations: each 
crossing is considered a single and complete project. However, 
individual channels in a braided stream or river, or individual arms of 
a large, irregularly shaped wetland or lake, etc., are not separate 
waterbodies, and crossings of such features cannot be considered 
separately.
    Stormwater management: Stormwater management is the mechanism for 
controlling stormwater runoff for the purposes of reducing downstream 
erosion, water quality degradation, and flooding and mitigating the 
adverse effects of changes in land use on the aquatic environment.
    Stormwater management facilities: Stormwater management facilities 
are those facilities, including but not limited to, stormwater 
retention and detention ponds and best management practices, which 
retain water for a period of time to control runoff and/or improve the 
quality (i.e., by reducing the concentration of nutrients, sediments, 
hazardous substances and other pollutants) of stormwater runoff.
    Stream bed: The substrate of the stream channel between the 
ordinary high water marks. The substrate may be bedrock or inorganic 
particles that range in size from clay to boulders. Wetlands contiguous 
to the stream bed, but outside of the ordinary high water marks, are 
not considered part of the stream bed.
    Stream channelization: The manipulation of a stream's course, 
condition, capacity, or location that causes more than minimal 
interruption of normal stream processes. A channelized stream remains a 
water of the United States.
    Structure: An object that is arranged in a definite pattern of 
organization. Examples of structures include, without limitation, any 
pier, boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, 
bulkhead, revetment, riprap, jetty, artificial island, artificial reef, 
permanent mooring structure, power transmission line, permanently 
moored floating vessel, piling, aid to navigation, or any other 
obstacle or obstruction.
    Tidal wetland: A tidal wetland is a wetland (i.e., water of the 
United States) that is inundated by tidal waters. The definitions of a 
wetland and tidal waters can be found at 33 CFR 328.3(b) and 33 CFR 
328.3(f), respectively. Tidal waters rise and fall in a predictable and 
measurable rhythm or cycle due to the gravitational pulls of the moon 
and sun. Tidal waters end where the rise and fall of the water surface 
can no longer be practically measured in a predictable rhythm due to 
masking by other waters, wind, or other effects. Tidal wetlands are 
located channelward of the high tide line (i.e., spring high tide line) 
and are inundated by tidal waters two times per lunar month, during 
spring high tides.
    Vegetated shallows: Vegetated shallows are special aquatic sites 
under the 404(b)(1) Guidelines. They are areas that are permanently 
inundated and under normal circumstances have rooted aquatic 
vegetation, such as seagrasses in marine and estuarine systems and a 
variety of vascular rooted plants in freshwater systems.
    Waterbody: For purposes of the NWPs, a waterbody is a 
jurisdictional water of the United States that, during a year with 
normal patterns of precipitation, has water flowing or standing above 
ground to the extent that an ordinary high water mark (OHWM) or other 
indicators of jurisdiction can be determined, as well as any wetland 
area (see 33 CFR 328.3(b)). An OHWM is a line on the shore established 
by the fluctuations of water and indicated by physical characteristics, 
or by other appropriate means that consider the characteristics of the 
surrounding areas (see 33 CFR 328.3(e)). If a jurisdictional wetland is 
adjacent--meaning bordering, contiguous, or neighboring--to a 
jurisdictional waterbody displaying an OHWM or other indicators of 
jurisdiction, that waterbody and its adjacent wetlands are considered 
together as a single aquatic unit (see 33 CFR 328.4(c)(2)). Examples of 
``waterbodies'' include streams, rivers, lakes, ponds, and wetlands.

[FR Doc. 06-7986 Filed 9-25-06; 8:45 am]
BILLING CODE 3710-92-P


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